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Operations with tolling raw materials. Foreign trade barter Signs of a barter transaction

11.2.1. Foreign trade barter transactions

Foreign trade barter transactions- a kind of countertrade, which is a non-currency, but valued natural exchange of goods on a balanced basis, formalized by a single agreement between Russian and foreign entities.

Barter is a separate form of countertrade that does not involve the use of money. One or another number of units of various commodities is directly exchanged for a corresponding quantity of other commodities with a view to their consumption or subsequent exchange for the desired goods. At the same time, physical barter transactions, as it were, replace money, making it possible to obtain a quantitatively commensurate volume of goods on the basis of direct exchange.

After the signing of contracts, the delivery of goods by counterparties to each other is carried out. To ensure the equivalence of exchange in barter transactions, a valuation of goods is required, which is also necessary for customs accounting, determining insurance amounts, for charging fines in case of contract violations, and for discounting low-quality goods.

The peculiarities of a barter transaction include its one-time nature, the determination of the final specification and volume of the transaction before the signing of the contract, the relatively short period of the transaction - no more than two years.

The main objectives of concluding international barter transactions are as follows:

Mitigating the problem of foreign exchange financing

import;

Simplification of the procedure for settlements;

Expanding the possibility of introduction to the markets of other countries;

Possibility of obtaining imported equipment in exchange for goods, the sale of which is difficult on normal commercial terms.

Banks may be involved in barter transactions, especially when contract lending is required.

Barter transactions are made in a simple written form by concluding a bilateral barter agreement, which must meet the following requirements:

a) the contract must have a date and number;

b) the contract is drawn up in the form of a single document, with the exception of barter transactions concluded on account of the implementation of international agreements. In this case, it is allowed to draw up the contract in the form of several documents, which should contain information that allows attributing the contract to a specific agreement, as well as establishing the relationship of these documents in order to determine the conditions for the execution of a barter transaction;

c) the contract must specify:

- nomenclature, quantity, quality, price of goods for each commodity item, terms and conditions of export, import of goods; a list of works, services, results of intellectual activity, their cost, terms of performance of work, the moment of provision of services and rights to the results of intellectual activity; a list of documents submitted to a Russian person to confirm the fact that work has been performed, services provided and rights to the results of intellectual activity; the procedure for satisfying claims in case of non-fulfillment or improper fulfillment by the parties of the terms of the contract.

When making barter transactions, the export of goods, works, services, results of intellectual activity can be carried out only after the issuance of a barter transaction passport. Customs clearance of goods transported across the customs border of the Russian Federation on account of the execution of barter transactions is also carried out on condition that a passport of barter transactions is submitted to the customs authorities of the Russian Federation.

The advantages of international barter include:

Opportunity to develop new markets for products and services;

Active collection of information and establishment of market contacts;

Providing conditions for Western firms to penetrate the markets of less developed countries that have a need for machinery and equipment, but lack foreign exchange funds;

The possibility of overcoming non-tariff barriers and restrictions in order to increase the competitiveness of firms in specific markets for export products;

Achieving significant savings in storage and transport costs.

Barter transactions can be viewed as a mechanism that replaces loans to enterprises. However, they have a number of advantages over loans. So they allow you to pay off debts through the direct transfer of goods and services. This eliminates the risk of non-payment arising from commercial lending from one enterprise to another. In addition, barter makes it possible to avoid losing the real value of loans provided by one enterprise to another due to high inflation.

The disadvantage of barter transactions is that they distort the system of nominal prices, which leads to an inaccurate assessment of the solvency of enterprises. In addition, the profitability and operation of an enterprise do not depend on the enterprise itself, but on the general situation at all enterprises that form a single barter network.

A significant drawback of barter is considered to be inconsistency with the principles of non-discrimination and multilateral trade exchange, since offers are usually made not in an open form, but on a bilateral selective basis. The disadvantage of barter is the need to take into account the needs of partners, which the seller must identify with a potential buyer, which is associated with additional difficulties and costs.

There are two types of barter: direct - bilateral, indirect - multilateral. Direct barter is carried out within the framework of the "goods for goods" formula, in which case the transaction is bilateral and ends with the acquisition by each counterparty of the goods he needs. With multilateral barter, the first transaction involves subsequent transactions with the participation of other business entities. They continue until each of these entities receives the goods he needs, which in the end will mean the end of multilateral barter exchange.

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"Foreign trade law", 2008, N 2

In modern international trade turnover, barter transactions play a very significant role. This is due to various circumstances, ranging from the peculiarities of state regulation of foreign economic activity and ending with the individual needs of counterparties. It is for this reason that barter transactions take on a variety of forms and are often expressed in a rather complex legal structure of contractual relations.

Foreign trade commodity exchange transactions are transactions that:

  • formalized by a single agreement (contract);
  • provide for a direct cashless exchange of goods;
  • contain an assessment of goods in order to create conditions for an equivalent exchange<1>.
<1>This definition is contained in the Letter of the Federal Tax Service dated May 31, 2005 N MM-6-03/450 "On Certain Issues on the Application of the Agreement with the Republic of Belarus".

The determining beginning of the development of commodity exchange operations are the following circumstances:

  1. countertrade flexibility. This circumstance enables counterparties to adapt to the changing conjuncture of world markets. A feature of countertrade is the expansion of the practice of counterpurchases by exporters of goods that cannot be used by them in their own production, but are intended in advance for subsequent sale in foreign or domestic markets.

It is important to note that the counterparties in countertrade, along with exporters and importers of basic goods, are:

a) a counter importer, which may be the exporter of the main product or any other organization specified in the agreement (contract);

b) a counter exporter, which may be the importer of the main product or any other organization specified in the agreement (contract);

  1. exacerbation of the problem of selling goods and services on world markets;
  2. the development of intra-company computerization, which makes it possible to quickly form the range of counter commodity flows;
  3. insufficiency of foreign exchange funds for settlements with individual states due to the uneven economic development of the country in the world economy;
  4. wide distribution in international commercial practice of various types of contracts: rental of machinery and equipment (leasing), contracts for the construction of turnkey facilities, contracts for the production of design and engineering works (engineering), license agreements, industrial cooperation agreements, joint venture agreements, etc.

In the field of international economic relations of a civil law nature, barter transactions are mostly referred to as barter transactions or foreign trade barter transactions.

Legal regulation of foreign trade barter transactions

Foreign trade barter transactions are subject to special regulation. The procedure for their commission is regulated by the following regulatory legal acts and documents:

  • Federal Law No. 164-FZ of December 8, 2003 "On the Fundamentals of State Regulation of Foreign Trade Activities" (hereinafter referred to as the Law on the Fundamentals of State Regulation of Foreign Trade Activities);
  • Decree of the President of the Russian Federation of August 18, 1996 N 1209 "On State Regulation of Foreign Trade Barter Transactions" (hereinafter referred to as the Decree on State Regulation of Foreign Trade Barter Transactions);
  • Decree of the Government of the Russian Federation of October 31, 1996 N 1300 "On measures for the state regulation of foreign trade barter transactions";
  • Guidelines for the implementation by the customs authorities of currency control and control over the execution of foreign trade barter transactions (Appendix to the Letter of the Federal Customs Service of July 12, 2007 N 01-06 / 25927);
  • Regulations of the FEC of Russia, MINFER of Russia, State Customs Committee of Russia dated May 28, 1997 N 07-26/3226, N 10-83/2007, N 01-23/10035 "On the implementation on the territory of the Russian Federation of control and accounting of foreign trade barter transactions providing for performance of work, provision of services and results of intellectual activity, expressed in material form";
  • Regulations on the control and accounting of foreign trade barter transactions involving the movement of goods across the customs border of the Russian Federation (approved by the State Customs Committee of Russia on April 11, 1997 N 01-23 / 6678, MVES of Russia on April 9, 1997 N 10-83 / 1355, VEK Russia April 2, 1997 N 07-26/768);
  • Letter of the Federal Tax Service dated May 31, 2005 N MM-6-03/450 "On Certain Issues on the Application of the Agreement with the Republic of Belarus";
  • The procedure for issuing permits for conducting certain barter transactions provided for by Decree of the President of the Russian Federation of August 18, 1996 N 1209 "On state regulation of foreign trade barter transactions" clause 3 (approved by the Ministry of Foreign Affairs of Russia on March 13, 1997 N 10-83 / 897, State Customs Committee of Russia on March 4, 1997 N 01-23/4663, VEC of Russia on February 28, 1997 N 07-26/356);
  • The procedure for issuing and accounting for passports of barter transactions (approved by the Ministry of Foreign Affairs of Russia, the State Customs Committee of Russia, the Ministry of Finance of Russia on December 3, 1996 N 10-83 / 3225, N 01-23 / 21497, N 01-14 / 197);
  • The procedure for agreeing and issuing passports of a barter transaction in the Ministry of Foreign Affairs of Russia (Appendix to the Order of the Ministry of Foreign Affairs of Russia dated December 6, 1996 N 592).

The concept of barter

First of all, it is necessary to note the terminological dissonance that takes place in the Russian-language legal literature. The following terms are used to denote the concept of "barter":

  1. Barter deal.

A barter transaction (from the English barter - barter, barter) is:

a) an agreement between participants in civil circulation on barter in kind, sale and purchase under the "goods for goods" scheme;

b) non-currency, but valued and balanced exchange of goods, drawn up by a single agreement (contract)<2>.

<2>See: Tikhomirova L.V., Tikhomirov M.Yu. Legal Encyclopedia. 5th ed., supplement. and reworked. M., 2006. S. 78.

  1. Barter.

Barter is a barter transaction (exchange agreement), in which one commodity is exchanged for another, equal in value. It is like a sale and purchase, but with payment not in money, but by compensating for a counter-delivery of goods equal in value<3>.

<3>See: Belov A.P. International Business Law: A Practical Guide. M.: Legal House "Justitsinform", 2001. S. 165.

Barter is understood as the exchange of a certain amount of one commodity for another in the form of barter without using the mechanism of monetary and financial settlements.<4>.

<4>See: Susanyan K.G. The most profitable deals: leasing, barter, barter with foreign partners. M., 1992. S. 59 - 60.

Barter is a separate form of countertrade that does not involve the use of money.<5>.

<5>See: Prokushev E.F. Foreign economic activity: Textbook. M .: Publishing and Trade Corporation "Dashkov and Co", 2005. P. 296.

Barter in the narrow sense is understood as the exchange of a certain amount of one commodity for another in the form of barter<6>.

<6>

  1. barter contract.

A barter contract is a non-currency but valuated exchange of goods in which valuation is done in order to:

a) ensure the equivalence of the exchange;

b) give the opportunity to determine the amount of insurance;

<7>See: Fundamentals of foreign economic knowledge / Ed. I.P. Faminsky. M.: Intern. relations, 1994. S. 231.

A barter contract in its structure and content is like a double contract of sale, in which each party is both a seller and a buyer.<8>.

<8>See: Voronkova O.N., Puzakova E.P. Foreign economic activity: organization and management. M.: Economist, 2006. S. 339.

  1. barter operations.

Barter transactions - the most traditional type of countertrade, representing a non-currency, but valued exchange of goods<9>.

<9>See: Sinetsky B.I. Foreign economic operations: organization and technique. M.: Intern. relations, 1989. S. 157 - 158.

  1. barter agreement.

A barter agreement is an independent agreement that has a number of features that distinguish it from sale, exchange and delivery, made both in the sphere of internal circulation of the Russian Federation and in its foreign trade sphere.<10>.

<10>See: Bolinger V.F. Foreign trade barter (legal aspects). Yekaterinburg, 1993. S. 10.

A barter agreement is a compensation contract, since the delivery of goods by one party is carried out "in compensation" (the legal term is "counter satisfaction") of the delivery of goods by the other party<11>.

<11>See: Schmitthoff K. Export: law and practice of international trade. M.: Yurid. lit., 1993. S. 95.

Barter agreements (barter transactions) provide for the exchange of an agreed amount of one product for another. Such an agreement either establishes the quantity of mutually supplied goods, or stipulates the amount for which the parties undertake to deliver the goods.<12>.

<12>See: Gerchikova I.N. International business. M.: UNITI-DANA, 2001. S. 291.

  1. Foreign trade barter.

Foreign trade barter refers to transactions made in the course of foreign trade activities that involve the exchange of goods, works, services, and results of intellectual activity of equivalent value.<13>.

<13>See: Civil Law: Textbook. In 2 volumes. Volume II. Polutom 1 / Resp. ed. prof. E.A. Sukhanov. 2nd ed., revised. and additional M.: Volters Kluver, 2004. S. 339.

  1. Foreign trade barter.

Foreign trade barter transaction - a kind of countertrade, which is a non-currency, but valued natural exchange of goods on a balanced basis, drawn up by a single agreement between Russian and foreign persons<14>.

<14>See: Prokushev E.F. Decree. op. S. 296.

A foreign trade barter transaction is a transaction in which settlements for the delivered goods are made by a counter delivery (deliveries)<15>.

<15>See: Kanashevsky V.A. Foreign economic transactions: substantive and conflict regulation. M.: Wolters Kluver, 2008. S. 340.

A foreign trade barter transaction is a transaction made in the course of foreign trade activities and provides for the exchange of goods, services, works, intellectual property, including a transaction that, along with the said exchange, provides for the use of monetary and (or) other means of payment in its implementation (Art. 2 of the Law on the Fundamentals of State Regulation of Foreign Trade Activities).

At the stage of studying the legal nature of barter transactions, from our point of view, it would be right to abandon the analysis of these terms and consider all these terms as synonyms.

Signs of a barter deal

So, a barter transaction (barter), being one of the forms of countertrade (a commodity exchange transaction), is an agreement between participants in commercial turnover with different state (national) affiliation for the exchange of goods, works, services or results of intellectual activity of equal value, drawn up in the form of a single document (agreement or contract).

The above definition of a barter transaction allows us to identify the following features.

  1. A barter transaction is one of the forms of countertrade - a barter operation. Countertrade includes foreign trade operations in which unified documents (agreements or contracts) fix firm obligations of exporters and importers to make a full or partially balanced exchange of goods.

Countertrade is an umbrella term that covers different types of two export transactions: the first comes from the exporting country, the second from the importing country.

The commercial advantage of countertrade is that it expands the practice of counterpurchases by exporters of goods that cannot be used in their own production, but are intended in advance for subsequent sale on the foreign or domestic market.

It should be noted that countertrade transactions proper, in contrast to barter transactions, have a number of distinctive features. First, other forms of countertrade are associated with the use of money as a means of determining the prices of goods exchanged, a means of financing the parties in the course of a transaction, and to pay for the surplus in the exchange of exports and imports of goods. Secondly, forms of countertrade other than barter are usually based on an element of necessity; they are forced to resort to national legislation, administrative regulation, currency restrictions, etc.

  1. A barter transaction is a contract, i.e. an agreement between two or more persons to exchange goods, works, services or results of intellectual activity of equal value. From the point of view of a legal characteristic, a barter transaction is an agreement: bilateral (multilateral), compensated, consensual, formal.

The implementation of barter legal relations is carried out in the following sequence: firstly, a contract is concluded with a foreign organization - a supplier for the exchange of goods; secondly, this organization delivers the goods; thirdly, as a payment for the imported goods, the partner ships the counter goods specified in the contract to the foreign company. At the same time, each of the parties participating in the barter transaction independently concludes additional contracts:

  • with a transport organization for international transportation of goods;
  • with an insurance company for its insurance;
  • with a bank or other organization on the issue of providing guarantees for the transaction.
  1. The subject of barter is not only things in the form of goods, but also works, services and results of intellectual activity. If we turn to the exchange agreement, then in accordance with Art. 567 of the Civil Code of the Russian Federation, the subject of this agreement can only be things that each of the parties to the agreement undertakes to transfer to the other party.
  2. Being a foreign trade transaction, in barter one of the parties to the agreement is the subject of entrepreneurial activity of the Russian Federation, and as the other - the subject of entrepreneurial activity of a foreign state, i.e. participation in a barter transaction of persons of different national (state) affiliation.
  3. A barter transaction is made in a simple written form by concluding an agreement. In accordance with the Decree on State Regulation of Foreign Trade Barter Transactions, this agreement must meet the following requirements:
  • firstly, the contract must have a date and number;
  • secondly, the contract is drawn up in the form of a single document, with the exception of barter transactions concluded on account of the implementation of international agreements;
  • Thirdly, the contract must specify:

nomenclature, quantity, quality, price of goods for each commodity item, terms and conditions of export, import of goods;

a list of works, services, results of intellectual activity, their cost, the term for the performance of work, the moment of provision of services and rights to the results of intellectual activity;

a list of documents submitted to a Russian person to confirm the fact that work has been performed, services provided and rights to the results of intellectual activity;

the procedure for satisfying claims in case of non-fulfillment or improper fulfillment by the parties of the terms of the contract.

As for the barter agreement, the same requirements are imposed on its form as on contracts of sale. If an exchange agreement is concluded between individuals and its price does not exceed 10 minimum wages, it is not necessary to draw it up in writing. But it should be remembered that there are exceptions for certain types of contracts. For example if state registration of the right to the received goods (thing) is necessary, the transaction must be concluded in writing without fail.

  1. The barter agreement, as noted by L.P. Anufriyev, gives rise to a relationship that lasts for both parties, during which the fulfillment of their obligations has an extension in time<16>.
<16>See: Anufrieva L.P. Private International Law: Textbook. In 3 volumes. Volume 2. Special part. M.: BEK, 2002. S. 288.

Types of barter deals

The classification of barter transactions was created primarily for theoretical purposes. The practical significance of any classification lies in the correct understanding of the rights and obligations of the parties, the determination of the range of legal norms to be applied in the process of the emergence, implementation and termination of legal relations. Barter relations are no exception.

  1. According to the nature of contractual relations, barter is divided into counter-purchase, counter-delivery, barter lease and tolling.<17>:

a) counter-purchase. Organization A instructs organization B to sell the products produced by A and at the same time instructs it to purchase raw materials for its production with the proceeds;

b) counter delivery. Entity A supplies equipment to Entity B under a supply contract, while the latter supplies Entity A with materials for the manufacture of equipment also under a supply agreement;

c) barter rent. Entity A lends equipment to Entity B under a lease agreement. Instead of rent, organization B pays with products produced on the leased equipment (option: payment is made by repairing equipment in organization A);

d) tolling (contract for the processing of raw materials tolling). Entity A supplies Entity B with raw materials for processing and receives payment in the form of finished goods.

<17>See: Popkov V.P., Mersiyanov A.A., Kinchin S.V. Management of barter operations: Monograph. M.: Route, 2004. S. 28.

  1. Balanced and unbalanced barter<18>.
<18>See: Arustamov E.A., Andreeva R.S. Foreign economic activity. M.: CJSC "Interexport", 2008. P. 212.

Balanced barter is a non-currency operation, i.e. counter deliveries of equal value.

An unbalanced barter is a transaction where the deliveries are different, namely, the final settlement is carried out in the form of clearing, i.e. offset of mutual claims by securities, currency. Moreover, only the difference in the value of the goods is paid in currency.

  1. Direct and indirect barter:

a) direct barter - bilateral;

b) indirect barter - multilateral.

Direct barter is carried out within the framework of the "goods for goods" formula, in which case the transaction is bilateral and ends with the acquisition by each counterparty of the goods he needs.

With multilateral barter, the first transaction involves subsequent transactions with the participation of other business entities. They continue until each of these entities receives the goods he needs, which in the end will mean the end of multilateral barter exchange.<19>.

<19>See: Prokushev E.F. Decree. op. S. 301.

  1. True barter and barter with valuation.

True barter is barter where goods are simply exchanged without regard to their monetary value.

Valued barter is barter where goods are exchanged based on their monetary value.

The main difference between these types of barter is that barter, both with and without valuation, is a single transaction in which the obligations of the parties are interconnected, dependent on each other, while in agreements on counterpurchase there are always two contracts.<20>. There are two problems with valuation barter contracts. The first of them consists in the disposal of goods received by the exporter from a foreign buyer. The second is the need to reach agreements on the settlement of the balance of payments, which is formed in favor of one of the parties to the barter transaction.

<20>See: Schmitthoff K. Decree. op. pp. 95 - 96.

  1. Pure (classic) barter.

With pure barter, the movement of counter flows of goods occurs, as a rule, simultaneously and their quantity is not affected by changes in price proportions in the world market. Pure barter in international trade is extremely rare due to its applicability only for a limited set of homogeneous goods mainly of primary origin and with little freedom of maneuver<21>.

<21>See: Bolinger V.F. Decree. op. pp. 19 - 20.

It should be noted that the above classification of barter is not fundamental from the point of view of the legal significance of the corresponding types of barter, it has rather scientific and educational than practical significance.

Problems of barter transactions

One of the most important issues of a barter contract is the problem of minimizing the risk of late receipt by the party that delivered its goods first from the counterparty. We are talking about the principle of real fulfillment of obligations, which is inherent in all transactions made both in the internal circulation of the Russian Federation and in foreign trade. However, if in ordinary transactions the reality of execution can be replaced by the payment of future income that the counterparty intended to receive, then the reality in a barter transaction is an essential part, without which there is no barter.<22>.

<22>See: Bolinger V.F. Decree. op. S. 97.

As some scholars note, this problem can be solved in practice by providing for a system of protection measures and operational sanctions aimed at ensuring the actual execution of the contract after violation of its individual conditions. First, the contract itself can provide for the simultaneity of deliveries. At the same time, it is agreed that if one of the partners is not ready to deliver its goods on time, then the other party has the right to delay its delivery. Secondly, it can be provided that if the delay in delivery on one side exceeds a certain period, then the other counterparty is released from its obligation to make a counter delivery, i.e. barter contract ceases to exist<23>.

<23>Degtyareva O.I., Polyakova T.N., Sarkisov S.V. Foreign economic activity. M.: Delo, 2007. S. 14.

In addition, the following may have a certain impact on the timeliness and clarity of obligations assumed under a barter contract:

a) inclusion in the contract of an obligation to compensate for losses (in the form of lost profits) caused by a delay on the part of the counterparty;

b) the use of one of the ways to ensure the fulfillment of an obligation, for example, a bank guarantee;

c) insurance of the risk of default by the counterparty.

Resolution of disputes on barter transactions in the practice of the ICAC

In barter transactions, as in all other foreign economic transactions, there are conditions for resolving disputes between the parties. Most of these disagreements are resolved through negotiations between counterparties, during which optimal solutions are found. When, due to different interpretations of their obligations, the parties fail to resolve the dispute through negotiations, it is referred to arbitration (arbitration court) in accordance with international practice.

We will illustrate the features of disputes arising from barter legal relations with some materials from the practice of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (hereinafter referred to as the ICAC).

In case No. 225/2000 of March 22, 2002, a claim was brought by a Russian organization against a Chinese company in connection with the failure to fulfill obligations under a contract concluded by the parties on September 18, 1998. Under the said agreement, which is a barter agreement, the plaintiff supplied the defendant with the goods stipulated by the contract, and the defendant did not ship the goods to be supplied in exchange within a period not later than 30 days after the plaintiff delivered the relevant consignments of goods. Plaintiff's claims included:

a) recovery of the principal amount of the debt and interest for the delay in the performance of a monetary obligation on the basis of Art. 395 of the Civil Code of the Russian Federation;

b) reimbursement of the paid amount of the fine imposed by the customs authorities;

c) reimbursement of the costs of the arbitration fee.

Considering the plaintiff's claim on the merits, the ICAC stated that the materials of the case confirm the amount of the defendant's main debt, presented for collection by the plaintiff. The amount of the debt was not disputed by the respondent. In accordance with Art. Art. 53 and 62 of the Vienna Convention, this amount is to be recovered from the defendant.

On the demand for the recovery of interest from the defendant for the use of other people's funds, the ICAC concluded that the calculation given in the statement of claim, based on the prescriptions of Art. 395 of the Civil Code of the Russian Federation, in this case could not be taken into account, since by virtue of Part 4 of Art. 15 of the Constitution and Part 2, Clause 2, Art. 7 of the Civil Code of the Russian Federation, the norms of an international treaty take precedence over the norms of national civil law.

The defendant's failure to fulfill obligations under the barter transaction, as well as under the contract for the international sale of goods, resulted in the imposition of a fine on the plaintiff for failure to return foreign currency, provided for by the customs legislation of Russia, which is confirmed by the decision of the customs authorities.

As for the recovery from the defendant of the amount of the fine paid by the plaintiff, these requirements were satisfied by the ICAC on the basis of Art. 74 of the Vienna Convention, according to which damages for breach of contract by one of the parties amount to an amount equal to the damage suffered by the other party as a result of breach of contract. The amount of the fine imposed on the plaintiff by the customs authorities of Russia amounts to such damage.

On the basis of paragraph 2 § 6 of the Regulation on Arbitration Costs and Fees, the arbitration fee is assigned to the defendant in proportion to the amount of satisfied claims<24>.

<24>See: Practice of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation for 2001 - 2002. / Comp. M.G. Rosenberg. M.: Statut, 2004. S. 277 - 282.

In case N 269/1997 of October 6, 1998, a claim was brought by a Chinese organization against a Russian organization in connection with the failure to fulfill obligations under a barter contract concluded in January 1994. An agreement was reached between the parties providing for the defendant to make monetary payments for the goods delivered by the plaintiff instead of reciprocal deliveries, the establishment of a debt repayment period, as well as the payment of bank interest in the amount of 3% per month in case of default on the debt repayment obligation. Plaintiff's claims included:

a) collection of the principal amount of the debt;

b) recovery from the defendant of interest under the contract.

Considering the plaintiff's claim on the merits, the ICAC notes that the plaintiff, in accordance with the schedule agreed by the parties in June 1994, delivered the goods to the defendant, and the defendant did not proceed to fulfill his counter obligation to supply the goods to the plaintiff in May - December 1994, explaining this in withdrawal of the claim for objective reasons, as a result of which the parties switched to settlements under the contract in cash.

In response to the claim, the defendant explained his refusal to repay the debt by the insolvency (bankruptcy) of the bank serving him, believing that this relieves him of liability for failure to fulfill the contract. In this case, the respondent relied on Art. 79 of the Vienna Convention. However, this reference was not recognized by the composition of the ICAC as justified. In this connection, the ICAC concluded that the obligation of the defendant as a buyer in accordance with Art. Art. 53 and 62 of the Vienna Convention is the payment to the plaintiff of the debt for the goods received.

The plaintiff's claim to recover interest from the defendant is based on the terms of the additional agreement of the parties dated March 21, 1995 to the contract, where, in accordance with paragraph 4, the defendant undertook to pay the plaintiff a bank interest of 3% per month for late payment, and the plaintiff in this regard refused to apply the penalty provided for in clause 7 of the contract for late payment for the goods<25>.

<25>See: Arbitration Practice of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation for 1998 / Compiled by M.G. Rosenberg. M.: Statut, 1999. S. 176 - 178.

In case No. 83/2001 dated July 1, 2002, a claim was brought by a Russian organization against a German company in connection with the incomplete fulfillment of obligations under a barter transaction concluded by the parties on May 14, 1997. The plaintiff's claims included payment of:

  • the value of the goods delivered by him, not covered by the counter deliveries of the defendant;
  • the amount of agreed and liquidated damages in the amount of 10% of the value of the goods not delivered by the defendant;
  • 6% per annum of the value of goods delivered, but not covered by counter deliveries.

As follows from the case file, the plaintiff delivered goods to the defendant, the value of which exceeded the value of the goods delivered by the defendant. The deliveries of the plaintiff and the defendant, respectively, were confirmed by transport documents (waybills), cargo customs declarations, and invoices. The difference between the cost of supplies of the plaintiff and the defendant is the amount of the principal debt presented by the plaintiff for collection.

In accordance with the section "Agreed and liquidated damages" of Appendix No. 2 to the contract, in the event of unilateral termination of the contract due to a delay in the delivery of goods exceeding 3 months, the defendant is obliged to pay the cost of the goods shipped by the plaintiff.

During the oral hearing in the case, the defendant did not dispute the supplies made by the plaintiff. In the objections to the claim submitted to the ICAC, the defendant indicated that the contract balance presented by the plaintiff was true.

The defendant's argument that the underdelivery of goods by the defendant is an optional imbalance is untenable, since the option is a slight imbalance caused by the conditions of transportation of the goods. In this case, there was a shortage of entire consignments of goods in the amount of about 35% of the total amount of goods delivered by the plaintiff.

The ICAC found reasonable and subject to satisfaction the amount of the defendant's debt in the amount claimed by the plaintiff for collection.

Having considered the plaintiff's claim to recover from the defendant the amount of agreed and liquidated damages in the amount of 10% of the amount of the undelivered goods, as well as the claim to recover from the defendant 6% per annum of the amount of goods delivered, but not covered by the counter delivery, the ICAC also considered them justified and subject to satisfaction<26>.

<26>See: Practice of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation for 2001 - 2002. / Comp. M.G. Rosenberg. M.: Statut, 2004. S. 391 - 395.

In case no. 45/2003 dated March 4, 2004, a lawsuit was filed by a US firm (plaintiff) against two Russian organizations in connection with the violation of the terms of a barter deal concluded on April 4, 2001 by the plaintiff with one of them (the second defendant) on behalf of other (first responder). During the process, at the request of the plaintiff, the case against the second defendant was dismissed. The second defendant disputed the competence of the ICAC to resolve the dispute in respect of him, since the arbitration agreement referred to by the plaintiff was contained in a contract concluded by the plaintiff with the second defendant, who acted as a commission agent under a commission agreement between the first and second defendants. The first defendant has no contractual relationship with the plaintiff and has not entered into an arbitration agreement with the plaintiff.

The plaintiff, who carried out construction and contracting work under a barter transaction and did not receive in payment for them the goods stipulated by the barter transaction, demanded:

  1. repayment in US dollars of debt for work performed with the accrual of a contractual penalty on the amount of debt;
  2. interest per annum for the use of other people's money;
  3. reimbursement of expenses for the arbitration fee;
  4. legal fees associated with the case.

As regards the plaintiff's claim to recover from the defendant the arrears in payment for the work performed by the plaintiff, the ICAC notes that in a written explanation of the claim and at the arbitration session, the first defendant confirmed the shortfall in the delivery of goods by the amount indicated by the plaintiff in US dollars.

The ICAC does not consider justified the argument of the first defendant about the unlawfulness of the plaintiff's claim in monetary terms under the barter contract, since the plaintiff stated at the meeting that he was not interested in receiving goods that were not shipped on time, and the first defendant had previously agreed to partial repayment of his debt in monetary terms (minutes dated November 3, 2001). This conclusion of the ICAC is consistent with the practice of understanding and applying the law of the Russian Federation, which is reflected in paragraph 11 of the Information Letter of the Supreme Arbitration Court of the Russian Federation dated January 24, 2000 "Review of practice under a construction contract."

With regard to the plaintiff's claim for the recovery of interest for the use of other people's money on the basis of Art. 395 of the Civil Code of the Russian Federation on the date of the decision, calculated for May 31, 2003, the ICAC finds that the plaintiff unlawfully applied the refinancing rate of the Central Bank of the Russian Federation when calculating the amount, since the obligations under the contract of the disputing parties are expressed in currency, and, accordingly, incorrectly determined the required amount. In this regard, the ICAC came to the conclusion that the said claim of the plaintiff should be left without consideration.

As for the plaintiff's expenses for the provision of legal services for the conduct of the case, as indicated by the ICAC, the plaintiff neither in writing nor during the consideration of the case stated the amount of the claim for reimbursement of expenses for the conduct of the case, in connection with which the ICAC considers that this the claim cannot be satisfied and must be rejected.

According to paragraph 2 § 6 of the Regulations on Arbitration Costs and Fees, which is an Appendix to the Rules, the costs of the plaintiff for the payment of registration and arbitration fees must be charged to the first defendant in proportion to the amount of satisfied claims<27>.

<27>See: Practice of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation for 2004 / Comp. M.G. Rosenberg. M.: Statut, 2005. S. 76 - 82.

In case N 119/2004 dated June 7, 2005, a claim was filed by a US firm against a Russian organization in connection with the incomplete fulfillment of the obligation to transfer goods to the plaintiff in exchange for goods supplied by the plaintiff to the defendant in pursuance of the agreement on joint activities dated November 16, 1999 and Supplement No. 3 dated April 1, 2000. In support of his claim, the plaintiff submitted acts of reconciliation of settlements dated October 10, 2002 and May 14, 2003. He also referred to the fact that on May 15, 2003 the defendant ceded the claim to the plaintiff to a third party precisely for this quantity of goods, however, the contract for the assignment of the claim did not enter into force, since the plaintiff did not receive the consent of the third party provided for by the said contract. On April 27, 2004, the third party informed the plaintiff that it had fully settled with the defendant and that it did not have any obligations towards the defendant that could be the subject of an assignment.

In the statement of claim, the plaintiff submitted an alternative claim:

  • to oblige the defendant to fulfill the obligation in kind or, in the absence of the goods to be delivered in exchange for the goods delivered by the plaintiff, to recover from the defendant its cost.

At the arbitration hearing, the plaintiff clarified his position, demanding to recover from the defendant his debt in the monetary terms indicated in the statement of claim.

In accordance with Supplement No. 3 of April 1, 2000 to the agreement concluded by the parties, the plaintiff supplied goods to the defendant, in exchange for which the defendant was obliged to deliver goods to the plaintiff in the amount agreed by the parties. The delivery of these goods and their acceptance by the defendant are confirmed by the acts of acceptance and transfer of goods dated March 29, July 24 and November 1, 2001, presented in the case file. On account of payments for the received goods, the defendant did not transfer the goods to the plaintiff in the amount specified in the statement of claim. The fact of this debt is confirmed by the act of reconciliation of mutual settlements signed by the parties on May 14, 2003 and other materials of the case.

In accordance with Art. Art. 569 and 328 of the Civil Code of the Russian Federation, the party that fulfilled the obligation under the exchange agreement has the right to demand from the other party the counter-fulfillment of the obligation in full.

Considering that the defendant had the opportunity to choose the method of repaying his debt for the supply of goods to the plaintiff - by transferring an appropriate amount of it or by paying a sum of money equivalent to its value, but the defendant did not use it, the ICAC considers the claimant's claim to reimburse him for the cost of the goods not received in exchange for the goods supplied by him, subject to satisfaction<28>.

<28>See: Practice of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation for 2005 / Comp. M.G. Rosenberg. M.: Statut, 2006. S. 237 - 241.

So, foreign trade barter transactions have a number of specific features that separate them from other forms of countertrade. The characteristic features of a barter transaction are:

  1. its one-time nature;
  2. participation in it is most often two parties;
  3. registration of the transaction with one contract;
  4. determination of the final specification and scope of the transaction before signing the contract;
  5. Relatively short compared to other forms of countertrade, the term of the transaction, which, as a rule, does not exceed one or two years.

S.V.Nikolyukin

head of department

civil law disciplines

Institute of Business and Politics

Foreign trade barter transactions are a type of barter. That is, it is understood that during the transaction there is an exchange of one product for another, equal in value. The participants in the transaction are residents of different countries. The exporter delivers the goods to the importer, but payment is made not in money, but by compensation for the counter delivery of goods.

Figure 1. "Scheme for the implementation of a foreign trade barter transaction"


Foreign trade barter legal relations carried out according to the scheme:

  • conclusion by the enterprise of a contract with a foreign supplier;
  • the supplier ships the goods on a barter basis;
  • the buyer, as payment for the imported goods, ships the counter goods specified in the contract to the supplier.
  • Each of the parties to the transaction independently concludes additional contracts:

    • Requirements for a foreign trade barter transaction

    A foreign trade barter transaction is concluded in a simple written form by concluding a bilateral barter agreement. The contract must comply the following requirements:
  • should have date and number;
  • must contain the following details:
  • quantity, quality, assortment, complexity, price of the goods (list of works, services, results of intellectual activity, their cost and the term of work);
  • terms and conditions of export/import of goods;
  • the procedure for satisfying claims in case of non-fulfillment or improper fulfillment by the parties of the terms of the contract.

    • Passport of a foreign trade barter transaction

    Decor barter transaction passports falls on the Russian company. Such a passport is needed for clearance of goods when crossing the border of the Russian Federation, it is submitted to the Russian customs authorities. For each concluded contract, one passport is issued. To do this, a Russian company submits an application to the department of the Ministry of Economic Development in the region where it is registered. Attached to the application full set of documents:
  • passport of the goods, drawn up in the prescribed form (2 copies);
  • original contract of exchange;
  • a copy of the document on state registration of a legal entity;
  • copies of constituent documents;
  • a copy of the document confirming the registration of the legal entity by the state statistics authorities;
  • a translation of the contract certified by a Russian person in the absence of the original contract in Russian.

    • Tax accounting for foreign trade barter transactions

    Foreign trade barter transactions imply that a Russian company submits to the tax authorities documents confirming the import of goods into the territory of the Russian Federation. It must be remembered that foreign trade barter transactions, in which goods are not imported into the territory of the Russian Federation, not subject to VAT, but there will also be no tax deduction right for them. (subclause 2, clause 1, article 165 of the Tax Code of the Russian Federation) “To confirm the zero VAT rate when making foreign trade barter transactions in which the received goods are not imported into Russia, it is necessary to submit the documents provided for by the contract confirming the receipt of the goods abroad and its posting” .

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    In the current legislation, and especially in business transactions, the term "barter" is often used when it comes to the exchange of any property benefits. Barter is the direct exchange of one commodity for another Nesterov S.S. The ratio of barter and barter in barter transactions // Jurisprudence. - 2008. - № 11. - S. 213. For example, a farmer exchanges 500 kg of grain for one cow belonging to a cattle breeder. However, barter transactions can be freely carried out only with a limited set of goods offered for exchange. The number of participants in a barter exchange is also limited. When a large circle of economic entities is involved in trade, barter encounters serious difficulties. For example, you want to trade your wheat for a copper jar, but the owner of the jar does not want your grain. It will take many intermediate trades before you finally become the owner of the jar. This difficulty, K. Menger noted, would seem insurmountable if "in the very nature of things there was no means that by itself and without any ... agreement or state coercion leads to the solution of this difficulty" Menger K. Foundations of Political Economy. - In the book: The Austrian School in Political Economy: K. Menger, E. Böhm-Bawerk, F. Wieser: Per. with him. / Foreword, comments, comp. V.S. Avtonomov. ? M.: Economics, 1992. - S. 218. . The fact is that as exchange develops in different regions, a product is allocated that has the greatest ability to sell (K. Menger's term). In modern terms, we are talking about a product that has the greatest liquidity.

    Already at an early stage in the development of trade in different countries and regions, people found such a product that was more marketable than their own, and which could be exchanged for the product they needed. As a medium of exchange, any goods were used - cattle, grain, salt, copper, etc., but they all had to satisfy one requirement: to receive general recognition from both buyers and sellers as a medium of exchange. In Russia, until the end of the reign of Dmitry Donskoy, silver bullion ("hryvnia"), foreign coins (until the middle of the 8th century - Roman denarii, in the 8th - 10th centuries - eastern dirhams, mainly Arab, with XI - Western European coins) and fur valuables ("kuns", "cuts", "muzzles", etc.). Gradually, precious metals - gold and silver - became absolutely liquid medium of exchange N. Kashtanov. From the history of small business in Russia // Man and Labor. - 2007. - No. 9. - S. 71 ..

    In the lexical meaning between the words "barter" and "barter" one can draw an identity (barter - from the English. to change, exchange). Does this mean that barter (barter transaction) is also synonymous with barter in the sense of Chapter 31 of the Civil Code? Analysis of the legislation shows that these concepts are not always identical. So, in paragraph 2 of Art. 154 of the second part of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code) mentions the sale of goods (works, services) through barter transactions. Barter transactions are also mentioned in paragraph 2 of Art. 40 parts of the first NK. It is easy to see that in the Tax Code, barter is understood as a transaction for the exchange of goods, which outwardly coincides with the exchange, but the goods in the Tax Code are understood not only as property, but also works and services, which in themselves, in contrast to the right to demand their performance, do not may be the subject of an exchange agreement in the sense of Art. 567 GK.

    From a legal point of view, these concepts ("barter" and "barter") are approximately in the same ratio as the categories "supply" and "contract". The term "barter" has traditionally been used for many years to refer to foreign trade transactions. During the crisis of monetary circulation between commercial organizations of the USSR (as later in the Russian Federation), relations in kind exchange, which were also called barter, became widespread. However, it is more correct to apply the term "barter" to foreign trade transactions.

    The Civil Code does not contain a definition of barter. Traditionally, the legal regulation of foreign trade barter transactions is carried out at the level of by-laws. Distinguish the concept of barter in the narrow and broad sense. In a narrow sense, barter is understood as the exchange of a certain amount of one commodity for another in the form of barter. In a broad sense, foreign trade barter refers to transactions made in the course of foreign trade activities that involve the exchange of goods, works, services, and results of intellectual activity of equivalent value. In the first case, this refers to the exchange of things that have a commodity form, and in the second case, the exchange is provided not only for things, but also for works, services, and results of intellectual activity that have a commodity form. In both cases, barter transactions do not include transactions involving the use of cash or other means of payment in their implementation, i.e. mechanism of monetary and financial settlements.

    The foreign trade barter agreement is bilateral, paid, consensual, concluded in a simple written form.

    According to Art. 43, 44 of the Federal Law of December 8, 2003 No. 164-FZ (as amended on February 2, 2006) "On the Fundamentals of State Regulation of Foreign Trade Activities" Rossiyskaya Gazeta. - 18.12.2003; 08.02.2006. prohibitions and restrictions on foreign trade barter transactions, the procedure for monitoring such transactions is established by the Government of the Russian Federation.

    We should also mention Decree of the President of the Russian Federation of August 18, 1996 No. 1209 "On state regulation of foreign trade barter transactions" Rossiyskaya Gazeta. - 28.08.1996. (hereinafter referred to as the Decree). According to paragraph 1 of the Decree, for the purposes of this regulatory act (which, as far as can be judged from the content of the Decree, consisted in ensuring currency and export control, although they were not formulated in this way), foreign trade barter transactions are understood as transactions made in the course of foreign trade activities that provide for the exchange of equivalent by value of goods, works, services, results of intellectual activity. At the same time, it is specifically noted that barter transactions do not include transactions involving the use of cash or other means of payment in their implementation.

    Paragraph 2 of the Decree contains an order to make barter transactions in a simple written form by concluding a bilateral barter agreement, which should, in particular, be drawn up in the form of a single document (with the exception of barter transactions concluded on account of the implementation of international agreements), contain an indication of the nomenclature, quantity, quality, price of goods for each commodity item, terms and conditions of export, import of goods; list of works, services, results of intellectual activity, their cost, terms of work performance, the moment of provision of works, services and rights, etc.

    Thus, from paragraph 2 of the Decree, it unambiguously follows that a barter transaction must be an exchange agreement. Meanwhile, the Decree does not contain any special definition of an exchange agreement. Consequently, the barter agreement mentioned in the Decree must be understood in accordance with the norms of the Civil Code, if only because otherwise the Decree would be completely unenforceable due to the uncertainty of the concept of a barter transaction.

    Of the items of the barter transaction listed in paragraph 1 of the Decree, the subject of the barter agreement in the sense of Art. 567 of the Civil Code can only be goods, as well as the results of intellectual activity, but not any, but only representing intellectual property (that is, according to Article 128 of the Civil Code, exclusive rights to the results of intellectual activity, for example, the rights of the owner of a patent for an invention). Meanwhile, the actual works and services, as noted above, cannot be the subject of an exchange agreement.

    According to paragraph 3 of Art. 3 of the Civil Code, civil law relations can be regulated by decrees of the President of the Russian Federation, which should not contradict the Civil Code. It follows that the mentioned Decree is not subject to application insofar as it, contrary to the rules of Art. 567 of the Civil Code, provides for the inclusion of works and services in the subject of an exchange agreement (that is, a barter transaction). Meanwhile, the exclusion of the mention of the barter agreement from paragraph 2 of the Decree would eliminate the noted contradiction between the Decree and Art. 567 GK. In this case, certain norms of Chapter 31 of the Civil Code could be applicable to relations arising in connection with the conclusion of a foreign trade barter transaction, but not directly, but by analogy with the law (clause 1, article 6 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.

    The rules on the sale and purchase are applied to it, if this does not contradict the essence of the exchange. In this case, each of the parties is recognized as the seller of the goods, which it undertakes to transfer, and the buyer of the goods, which it undertakes to accept in exchange.

    Goods - any things, except for those withdrawn from circulation or limited in circulation. Objects withdrawn from circulation - objects directly specified in the law, the presence of which in circulation is not allowed, and objects that can belong only to certain participants in the circulation, or whose presence in circulation is allowed only with special permission, are recognized as restricted in circulation.

    The exchange agreement is consensual, mutual.

    Parties: citizens and legal entities. faces.

    Each party is obliged to transfer the goods provided for by the exchange agreement, free from the rights of 3 persons, in accordance with the documents, within the period specified by the agreement for its transfer, in a certain quantity, of the appropriate quality, etc., as well as obligations the buyer: to accept the transferred goods (except for cases when he has the right to demand the replacement of the goods or refuse to execute D), pay for the goods by transferring another counter goods.

    The price of the contract is the cost of each of the counter goods. As a general rule, exchanged goods are assumed to be of equal value. If the parties recognize the exchange as not equivalent, the difference in prices shall be paid. The term of the contract is determined by agreement of the parties.

    An exchange agreement executed at the time of its conclusion, as well as transactions between citizens in the amount of less than 10 minimum wages, may be concluded orally. All other exchange agreements must be in writing.

    Unless otherwise provided by law or an exchange agreement, the ownership of the exchanged goods passes to the parties simultaneously after the fulfillment of the obligations to transfer the relevant goods by both parties.

    P. 2, Article 45. Features of the implementation of foreign trade barter transactions

    Russian persons who have entered into foreign trade barter transactions or on behalf of whom such transactions have been concluded, within the time limits established by the terms of such transactions, are obliged to ensure the import of goods of equal value into the Russian Federation, the provision by foreign persons of equivalent services, the performance of equivalent work, the transfer of equivalent exclusive rights to intellectual property objects or granting the right to use intellectual property objects with confirmation of the fact of importation of goods, provision of services, performance of work, transfer of exclusive rights to intellectual property objects or granting the right to use intellectual property objects with relevant documents, as well as receipt of means of payment and crediting the accounts of these Russian persons with authorized banks of the relevant funds, if foreign trade barter transactions provide for the partial use of cash and ( or) other means of payment. If, under the terms of a foreign trade barter transaction, the fulfillment by a foreign person of his obligations must be carried out in a manner that does not provide for the import into the Russian Federation of goods transferred to the Russian person who concluded such a foreign trade barter transaction, these goods, after they are received by the Russian person outside the territory of the Russian Federation, must be sold in accordance with the requirements established by part 5 of this article.



    61. Gift agreement: concept, content, features. Prohibition and cancellation of donation.

    Under a gift agreement, one party (the donor) transfers or undertakes to transfer to the other party (the donee) a thing in ownership, a property right (claim) to himself or a third party, or releases or undertakes to release the donee from property liability.

    This is a bilateral transaction (for example, the consent of not only the donor, but also the donee).

    The contract is gratuitous, real or consensual (a promise to give in the future).

    The subject of the donation is the following legal actions: debt forgiveness; debt transfer; acceptance of the obligation. The subject of this agreement can also be various property rights, which are of a twofold nature: either liability (claims to any person), or property rights.



    A promise to donate all of your property or part of all your property without indicating a specific type of thing, right or release from obligation is void.

    Parties: donor and donee (citizens, legal entities and the state).

    The form of the contract depends on the subject, subjects and price. The real estate donation agreement is concluded in writing and is subject to mandatory registration. Mandatory written form is required in the following cases:

    1) if the donor is a legal entity and the value of the gift exceeds 3 thousand rubles;

    2) if the contract contains a promise to donate in the future.

    All other donation agreements may be concluded orally. The law prohibits donations in case of death (inheritance).

    The donee has the right to unilaterally terminate the contract and refuse to accept the gift at any time before the gift is transferred to him. If the gift agreement was concluded in writing, the donor has the right to demand compensation from the donee for real damage caused by the refusal to accept the gift.

    Donation is prohibited, with the exception of ordinary gifts, the value of which does not exceed 3 tr.:

    1) on behalf of minors and citizens recognized as incompetent, their legal representatives;

    2) employees of medical, educational institutions, social institutions. protection, other similar institutions by citizens who are in them for treatment, maintenance or education, spouses and relatives of these citizens;

    3) civil servants and employees of bodies of municipalities in connection with their official position or in connection with the performance of their official duties;

    4) in relations between commercial organizations.

    Cancellation of a gift 1. The donor has the right to cancel the gift if the donee has committed an attempt on his life, the life of any of his family members or close relatives, or intentionally caused bodily harm to the donor. In case of intentional deprivation of the donor's life by the donee, the right to demand in court the cancellation of the gift belongs to the donor's heirs. 2. The donor has the right to demand in court the cancellation of the donation, if the donee's handling of the donated item, which is of great non-property value for the donor, creates a threat of its irretrievable loss. 3. At the request of an interested person, the court may cancel a donation made by an individual entrepreneur or a legal entity in violation of the provisions of the law on insolvency (bankruptcy) at the expense of funds related to his entrepreneurial activity, within six months preceding the announcement of such a person as insolvent (bankrupt).

    4. The gift agreement may stipulate the right of the donor to cancel the gift if he outlives the donee. 5. If the donation is cancelled, the donee shall be obliged to return the donated item, if it has been preserved in kind by the time the gift is cancelled.

    The donor has the right to refuse to perform the donation agreement in the following cases:

    1) changes in his property, marital status, state of health after the conclusion of the contract to such an extent that its execution will lead to a significant decrease in his standard of living;

    2) in case of a deliberate crime against the life, health of the donor, members of his family, close relatives.

    In case of intentional deprivation of the donor's life by the donee, the right to demand in court the cancellation of the gift belongs to the donor's heirs.

    The donor has the right to demand in court the cancellation of the donation, if the treatment of the donee with the donated item, which is of great non-property value for the donor, creates a threat of its irretrievable loss.

    The gift agreement may stipulate the right of the donor to cancel the gift if he outlives the donee.

    A donation is a donation of a thing or right for a public benefit. They can be made to citizens, medical, educational institutions, social protection institutions and other similar institutions, charitable, scientific and educational institutions, foundations, museums, the state, etc. No permission or consent is required to accept a donation.

    62 The contract of permanent annuity and the contract of life annuity: concept, content, features.

    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 received property, to periodically pay the rent recipient in the form of a certain amount of money or provide funds for its maintenance in another form.

    Annuity agreement - real, compensated or gratuitous and unilaterally binding.

    Parties: rent recipient (citizens) and rent payer (citizens and legal entities).

    An annuity agreement is subject to notarization, and an agreement providing for the alienation of immovable property against the payment of an annuity is 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.

    Annuity encumbers a land plot, enterprise, building, structure or other immovable property transferred under its payment. In case of alienation of such property by the rent payer, his obligations under the rent agreement are transferred to the acquirer of the property. When a land plot or other immovable property is transferred for payment of rent, the recipient of the rent, in order to secure the obligation of the payer of the rent, acquires the right of pledge on this property.

    Types of annuity: permanent (paid indefinitely), life (paid for the period until the death of the renter), annuity on the terms of life maintenance with a dependent.

    Recipients of permanent annuity citizens and non-profit organizations, if it does not contradict the law, corresponds to the goals of their activities. The rights of the recipient of the annuity can be transferred by assignment of the claim and be inherited or by succession during the reorganization of legal entities. persons. The permanent annuity is paid in money in the amount stipulated by the contract. In this case, payment may be provided by providing things, performing work or providing services corresponding in value to the amount of rent.

    Unless otherwise provided by the agreement, the permanent rent is paid at the end of each calendar quarter. The payer of rent has the right to refuse further payment of rent by its redemption. The waiver of such right is void.

    The recipient of a permanent annuity has the right to demand the redemption of the annuity by the payer in cases where:

    1) the rent payer has delayed its payment by more than 1 year, unless otherwise provided by the permanent rent agreement;

    2) the rent payer has violated his obligations to ensure the payment of rent;

    3) the rent payer has been declared insolvent or other circumstances have arisen that clearly indicate that the rent will not be paid in the amount and within the time limits established by the agreement;

    4) immovable property transferred against the payment of rent has come into common ownership or is divided among several persons;

    5) in other cases stipulated by the contract.

    Redemption of a permanent annuity is made at a price determined by a permanent annuity agreement. In the absence of a condition on the redemption price in the contract under which the property was transferred for a fee, the redemption is carried out at a price corresponding to the annual amount of the rent payable.

    The risk of accidental loss or accidental damage to property transferred free of charge against the payment of a permanent annuity shall be borne by the payer of the annuity.

    In the event of accidental loss or accidental damage to property transferred for payment against the payment of a permanent annuity, the payer has the right to demand, accordingly, the termination of the obligation to pay the annuity or a change in the conditions for its payment.

    Under a rent agreement, it is allowed to establish the obligation to pay rent for the life of the recipient of the rent (life annuity) or for the life of another citizen indicated by him.

    Subject - any movable and immovable property capable of participating in civil circulation. Life annuity is not inherited, is not transferred by assignment of the right to claim.

    Life annuity is paid in cash throughout life. Its size is an essential condition of the contract. It cannot be less than the minimum wage per month. Unless otherwise agreed, payable at the end of each calendar month.

    One of the grounds for termination of the obligation to pay a permanent annuity is the death of its recipient.

    In the event of a material breach of the life annuity agreement by the payer of the annuity, the recipient of the annuity has the right to demand that the payer repurchase the annuity or terminate the agreement and compensate for losses.

    If an apartment, dwelling house or other property is alienated free of charge against the payment of a life annuity, the recipient of the rent has the right, in case of a material breach of the contract by the payer of the rent, to demand the return of this property, offsetting its value against the redemption price of the rent.

    Accidental loss or accidental damage to property transferred under the payment of a life annuity does not release the annuity payer from the obligation to pay it.

    63. Lease agreement: concept, content, features.

    Under a lease (property lease) agreement, the lessor (landlord) undertakes to provide the tenant (tenant) with property for a fee for temporary possession and use or for temporary use, and the lessee undertakes to pay rent.

    The lease agreement is consensual, mutual and paid.

    An essential condition is its subject (individually defined, non-consumable and irreplaceable things, because at the end of the contract, the tenant must return the property in the same form and condition in which he received it, taking into account wear and tear).

    The contract must contain data that allow you to definitely establish the property to be transferred to the tenant as an object of lease. In the absence of these data in the contract, it is considered not concluded.

    Parties: the lessor - the owner of the property or a person authorized by law or the owner to lease the property; tenant - a person interested in obtaining property for use (citizens and legal entities, as well as the state, municipalities).

    Form of agreement: a lease agreement for a period of less than 1 year, and also, if at least one of the parties to the agreement is a legal entity, regardless of the term, must be concluded in simple written form. The real estate lease agreement is subject to mandatory state registration.

    If the contract provides for the subsequent transfer of ownership of the leased property to the tenant, then it is concluded in the form provided for the sale and purchase of such property.

    The term of the lease agreement is not an essential condition. It is determined by agreement of the parties. In the absence of a condition on the term of the contract, it is considered concluded for an indefinite period. Each of the parties has the right to withdraw from the contract at any time, but at the same time it must notify the other party when renting movable property - 1 month in advance, when renting real estate - 3 months in advance.

    The price of the contract is not its essential condition. In the event that the rent is not established by the contract, the usual rent is applied.

    Types of lease agreement:

    1) rental agreement; 2) rental of vehicles with and without a crew; 3) lease of buildings and structures; 4) lease of residential premises; 5) enterprise lease; 6) financial lease (leasing) agreement.

    Landlord Responsibilities:

    1) provide the other party with property corresponding to the contract and the purpose of the property;

    2) transfer the property within the stipulated time. If the term of the contract is not determined, then within a reasonable time;

    3) warn the tenant about the rights of third parties to the leased property (servitude, right of pledge);

    4) to carry out major repairs of property - restoration of the main parts of the leased property, without which the latter cannot be used for its intended purpose;

    5) reimburse the lessee for the cost of inseparable improvements made with the consent of the lessor and at the expense of the lessee, unless otherwise provided by the lease agreement.

    The tenant is obliged:

    1) use the leased property personally, using the property only for its intended purpose;

    2) for the use of property to pay a fee in a timely manner, the amount, procedure, conditions and term for payment of which is determined by the contract. The rent can be set in a fixed amount of payments; in the form of a share of production, income or fruits; provision of services; imposition of costs for the improvement of the leased property;

    3) upon termination of the lease agreement, return the property to the lessor in the condition in which he received it, taking into account normal wear and tear or in the condition stipulated by the agreement;

    4) maintain the leased property in good condition, carry out current repairs at their own expense and bear the costs of maintaining the property, unless otherwise provided by law or the lease agreement.

    The lessee shall not have the right, without the consent of the lessor, to sublease the leased property, as well as pledge the lease rights and make them as a contribution to the charter capital of economic partnerships and companies.

    64. Rental agreement: concept and content. Features of household rental.

    A rental agreement is an agreement by virtue of which the lessor, who leases property as a permanent business activity, undertakes to provide the tenant with movable property for a fee for temporary possession and use (Article 626 of the Civil Code of the Russian Federation).

    The rental agreement is:

    1) consensual - the contract is considered concluded from the moment when the parties have reached an agreement on all the essential terms of the rental contract;

    2) paid;

    3) mutual - the existence of subjective rights and obligations for both parties to the rental agreement;

    4) public - the lessor, if he has the opportunity to rent out the property, does not have the right to refuse to conclude an agreement to the person who applied to him, to establish different conditions for different tenants in it.

    The parties to the rental agreement are the lessor and the lessee. The lessor of the submitted agreement is an entrepreneur (commercial organization, individual entrepreneur), for whom the lease of property is a permanent activity. Any person can act on the side of the tenant.

    Only movable property can be the subject of a rental agreement.

    The property provided under this agreement is used for consumer purposes, unless otherwise provided by the agreement or follows from the nature of the obligation. In this regard, the tenants under this agreement are mainly citizens who use the property for personal, family, and home use. Such relationships are subject to consumer protection legislation.

    The form of the contract is written.

    The rental agreement cannot be concluded for an indefinite period. Its maximum term is established in an imperative manner and is equal to 1 year (clause 1 of article 627 of the Civil Code of the Russian Federation). The rules on the renewal of a lease agreement for an indefinite period and on the tenant's pre-emptive right to renew a lease agreement do not apply to a rental agreement (clause 2, article 627 of the Civil Code of the Russian Federation). The tenant may cancel the rental agreement at any time, subject to a written warning to the lessor of this at least 10 days in advance (clause 3 of article 672 of the Civil Code of the Russian Federation).

    Capital and current repairs of property leased under a rental agreement are the responsibility of the lessor. It is not allowed to sublease property provided under a rental agreement, transfer their rights and obligations under the agreement to another person, provide this property for free use, pledge lease rights and make them as a property contribution to business partnerships and companies or a share contribution to production cooperatives.

    A type of rental contract is a contract household rental, the peculiarity of which is that the tenant is a citizen-consumer, the subject of the contract is used for consumer purposes. The norms of the Law “On Protection of Consumer Rights” apply to these relations.

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