A special feature of sales contracts is the presence huge amount its legal structures and types, starting from contracts retail purchase and sale and ending with purchase and sale agreements (contracts) of business assets, shares and participation interests (the subject of the latter is virtual in nature).
Concept of contract
A purchase and sale agreement (of goods) is a transaction in accordance with which the seller transfers the goods into the ownership of the buyer for the remuneration established by the contract. Based on review judicial practice, the objects of contracts are considered to be the actions of the seller related to the transfer of ownership of the goods and the goods themselves, as well as the actions of the buyer, which indicate his acceptance and payment for the goods (Article 129 of the Civil Code of the Russian Federation).
The most common type of transaction in civil circulation is a retail purchase and sale agreement, which citizens carry out every day. In accordance with civil legislation (Article 168 of the Civil Code of the Russian Federation), the conclusion of retail purchase and sale agreements, as well as other types of transactions, the subject of which are goods limited in circulation, as well as prohibited for sale, is prohibited. Transactions that violate the above legal requirements may be recognized as judicial procedure invalid.
The Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 N 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights” sets out the legal position, according to which the rules for the sale of goods by business entities in which the buyer is citizens purchasing goods for personal needs (as a rule, these are retail purchase and sale agreements), the norms of the Civil Code of Russia and the Law of the Russian Federation of February 7, 1992 N 2300-I “On the Protection of Consumer Rights” are applied.
An example of judicial practice on a retail purchase and sale agreement, which explains the legal grounds for invalidating it:
The Perm Regional Court issued a ruling dated June 13, 2012 “On invalidating the retail purchase and sale agreement 33-4041,” in which the plaintiff was denied the claim. The basis for the refusal was the fact that the goods purchased under the sales contract (vacuum cleaner) were accepted by the buyer after its demonstration, and after making an advance payment under the contract, the remaining (full) amount for the goods was paid during the contract period. The presence of significant defects in the product or the impossibility of using it for its intended purpose was not supported by admissible evidence in court.
Invalidity of transactions
For some types of contracts, written form is mandatory (a contract for the sale and purchase of a car, real estate), failure to comply with which may be a legal basis for invalidating the contract.
Certain types of agreements, such as a real estate purchase and sale agreement, must be made in writing, and they are also subject to mandatory registration of the right to real estate, which is the subject of the agreement. Judicial practice suggests that it is sufficient a large number of contracts are declared invalid in the absence of state registration of rights, since the law provides for the need to register rights to real estate.
As a review of judicial practice shows, great importance attached to the will of the parties when making a transaction. If the agreement contains signs of an imaginary or feigned transaction (Article 170 of the Civil Code of Russia) and the implementation of the will is not aimed at achieving the legal consequences that are reflected in the transaction, for example, under a real estate purchase and sale agreement, then such a transaction may be declared invalid in court .
To complete a transaction that will have all the legal consequences associated with achieving the purpose of the transaction, the full legal capacity of the person who is a party to the agreement is required. If it is proven that a party to the contract was an incapacitated person or one with incomplete legal capacity, such a transaction may be declared invalid. The court also has the right to: apply all legal consequences of the invalidity of the transaction under the purchase and sale agreement, while the parties to the agreement are brought to their original legal status existing before the illegal transaction took place. This means that if, for example, an apartment purchase and sale agreement is declared invalid, the seller is obligated to return the entire amount of funds received under the agreement, and the buyer is obliged to return the apartment (land plot, real estate) to the seller.
Transactions that relate to contracts for the purchase and sale of real estate, the conclusion of which requires the consent of the guardianship and trusteeship authorities (Clause 2 of Article 37 of the Civil Code of Russia), without such consent are void. These categories of transactions include transactions that were made by a person with limited powers (Article 174 of the Civil Code of Russia), minors (Article 175 of the Civil Code of Russia), incompetent persons (Article 176 of the Civil Code of Russia), committed by citizens who cannot understand the meaning of their actions (Article 177 of the Civil Code of Russia).
A contract for the purchase and sale of real estate, a car, etc., made under the influence of a mistake, is recognized as invalid (Article 178 of the Civil Code of the Russian Federation). (Presidium of the Supreme Arbitration Court Russian Federation. Information letter dated December 10, 2013 N 162. Review of the practice of application by arbitration courts of Articles 178 and 179 of the Civil Code of the Russian Federation).
In the case where it was concluded preliminary agreement, which determined further grounds for concluding a purchase and sale agreement, if the main agreement is declared invalid, the preliminary agreement is also invalidated. Preliminary agreements, as a rule, are concluded with the aim of ensuring that the main agreement will subsequently be concluded on time and under the conditions specified in the preliminary agreement. This type of agreement does not give rise to rights and obligations that are reflected in the terms of the main agreement, therefore, there are no legal grounds to separately recognize a preliminary agreement as invalid if the main agreement has been concluded or executed in whole or in part.
Preliminary agreements are concluded as an intention to subsequently conclude a transaction for the purchase and sale of real estate (land, apartment, etc.), a car, supplies, rent, transportation, etc.
Based on the analysis of judicial practice in resolving disputes related to the execution or invalidation of contracts for the sale of a car, real estate, apartment, furniture and other property, the following conclusions can be drawn. A real estate purchase and sale agreement is a legal fact that establishes, changes or terminates a certain amount civil rights and responsibilities. During its conclusion, the obligations of the parties include agreeing on all its terms, which the parties define as essential.
Execution of contracts
One example of a court decision concerning the issue of execution of contracts is case No. 33-10 dated January 12, 2012 (Voronezh Regional Court), according to which the plaintiff (the Company) filed a claim to recognize the refusal to fulfill the contract as lawful. In addition, a demand was made for the recovery of a sum of money related to losses, compensation for moral damage and penalties for failure to fulfill contractual obligations. The essence of the dispute was that, in accordance with the purchase and sale agreement for the car, warranty obligations were determined for it. After completing the purchase and sale agreement, as well as completing the transfer of the car, the plaintiff, in the process of using it, discovered certain shortcomings (engine noise) and some defects that were invisible during the initial inspection. The defendant accepted the car for warranty repair, however, the shortcomings indicated by the plaintiff were not actually eliminated. On this basis, the plaintiff refused to execute the contract for the sale and purchase of the car and filed the above claims.
Since the obligation to provide evidence to the court as a substantiation of their legal position lies with the parties, and the purchase and sale agreement obliges each party to fulfill its obligations, then in order to refuse to perform the contract, subjects of law must be provided with sufficient legal grounds that justify the impossibility of its execution. As the court found, in in this case The plaintiff did not provide admissible evidence that the car was unusable and that the contract for the sale and purchase of the car might not be performed. On the above grounds, the court refused to satisfy the plaintiff’s claims in in full.
The burden of proof in court proceedings
In most cases, when a dispute about invalidating a contract concerns contracts for the sale and purchase of a car, furniture, or movable property, in accordance with Art. 224 of the Civil Code of Russia, such agreements are considered executed at the moment of transfer of property and money to each other by the parties to legal relations. The basis for declaring these types of contracts invalid can only be the failure of one of the parties to fulfill its obligations. As judicial practice shows, in order to invalidate a car purchase and sale agreement, the presence of any defects in the car is not enough. A necessary condition for the specified legal grounds will only be the impossibility of using the car for its intended purpose. The same applies to other types of property, furniture or household items. The circumstances of the impossibility of using the property acquired under a sales contract for its intended purpose must be proven in court with the provision of acceptable evidence (forensic merchandising examinations, engineering and technical examinations, expert opinions). Testimony of witnesses cannot be evidence in these cases.
It is necessary to prove the moment from which the property became unsuitable for use for its intended purpose, or the formation of a significant defect in it.
Sales contracts are governed by the provisions of Art. 454 Civil Code of Russia. Contracts for the purchase and sale of real estate are considered unconcluded when they do not define prerequisites(requirements of Art. 554, 555 of the Civil Code of Russia). In accordance with these articles, such conditions are the subject of the contract and its price.
Based on the analysis of judicial practice, property, real estate, or a car cannot be the subject of a purchase and sale agreement if it is under an encumbrance. In accordance with the procedure established by current legislation, if the encumbrance is registered in the State Register, then in order to complete the transaction, the removal of the encumbrance by the body or owner that imposed it must also be registered. Selling real estate with an encumbrance is a very rare type of transaction.
Important: With the acquisition of real estate, restrictions (encumbrances) are transferred to the new owner.
In the case where an apartment that is a common shared property is alienated and the encumbrance is imposed only on the share of one of the owners, only the shares that are not encumbered by the prohibition of sale are subject to alienation.
Based on the analysis of judicial practice, a fairly large percentage of decisions concern forcing one of the parties to a contract for the sale and purchase of an apartment, real estate, car or furniture to fulfill monetary obligations. One example of such decisions is the decision of the Sernursky District Court of the Republic of Mari El in case No. 2-106/2015-M-99/2015, in accordance with which the claims of citizen XXX were satisfied and the debt was recovered from defendants 1 and 2 in the interests of the plaintiff agreement for the purchase and sale of an apartment in the prescribed amount.
Article 454 of the Civil Code of the Russian Federation. Contract of sale
1. Under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into ownership of the other party (buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it.
2. The provisions provided for in this paragraph apply to the purchase and sale of securities and currency values, unless special rules for their purchase and sale are established by law.
3. In cases provided for by this Code or other law, the specifics of the purchase and sale of certain types of goods are determined by laws and other legal acts.
4. The provisions provided for in this paragraph apply to the sale of property rights, unless otherwise follows from the content or nature of these rights.
5. K certain species sales contracts (retail purchase and sale, supply of goods, supply of goods for government needs, contracting, energy supply, sale of real estate, sale of an enterprise) the provisions provided for in this paragraph apply, unless otherwise provided by the rules of this Code on these types of contracts.
Compulsion to conclude a purchase and sale agreement for non-residential premises
ARBITRATION COURT OF MOSCOW
In the name of the Russian Federation
(extraction)
The operative part of the decision was announced on January 22, 2007.
The full text of the decision was made on January 29, 2007.
The arbitration court composed of presiding judge N., the protocol was conducted by assistant judge P.G.N., with the participation of: from the plaintiff - B. (ex. dated 01/17/2007 b/n), from the defendant - P.Yu.V. (ext. dated 01/09/2007 N 07/05-7), from the 3rd person - A. (ext. dated 11/16/2006 N D-06/3343), having considered the case on the claim of Luna LLC against SGUP for the sale property of the city of Moscow, 3rd party - DIGM, on compulsion to conclude a purchase and sale agreement,
INSTALLED:
Luna LLC filed a claim with the court against the State Unitary Enterprise for the sale of property in Moscow to force the defendant to enter into a purchase and sale agreement for non-residential premises with an area of 525.6 square meters. m (floor 1, room II, rooms 1, 2, 2a, 3, 3a, 3b, 4-9, 9a, 9b, 10 - 14, 14a, 15, 15a, 16, 16a, 17, 17a, 19 , 23, 23a, 24, 25), located at the address: Moscow, st. Perovskaya, 10, bldg. 1, priced at RUB 6,628,894. on the terms of the draft agreement attached to the claim, referring to the creation of the company in the process of privatization of the property of studio No. 37 and the use of real estate on a lease basis.
The defendant rejected the demand, citing the absence of a corresponding order from the DIGM, stated that there was no application from the plaintiff for the redemption of real estate before the expiration of the period provided for in paragraph 13 of Art. 43 of the Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property”, and on the impossibility of purchasing real estate after two years from the date of entry into force of this Law, and also challenged the redemption price of the property proposed by the plaintiff.
The 3rd party considers the demands to be unlawful, pointing out that the provisions of real estate lease agreements regarding the right to buy out this property have become invalid since 04/27/2004, and that the lease agreement dated 02/15/1995 N 4-108/95, concluded with the plaintiff, does not provide for the possibility of redemption leased property, stated that the market price of the real estate in respect of which the claims were made is currently RUB 34,235,593.
Contesting the arguments of the defendant and the third party, the plaintiff referred to the established judicial practice on such disputes (Resolution of the Federal Antimonopoly Service of the Moscow Region dated October 4, 2006 N KG-A40/9151-06).
Having examined the documents presented and heard the persons involved in the case, the court finds the claims subject to satisfaction due to the following circumstances.
Luna LLC is the legal successor of Luna Firm LLP, created during the privatization of studio No. 37 at the address: Moscow, st. Perovskaya, 10, building 1.
In accordance with the privatization plan, approved by the decision of the Territorial Agency of the Higher Administrative Okrug of Moscow State Property Committee dated April 10, 1992 N 6, Luna LLP, under the purchase and sale agreement dated November 4, 1992 N 04-00239/92, purchased the main and working capital studio.
The privatization plan and agreement dated November 4, 1992 N 04-00239/92 provide for the lease of studio premises to the partnership with the right to buy them out after one year.
Rental use of studio premises with an area of 527.9 sq. m formalized by agreement dated February 15, 1995 N 4-108/95 between the Moscow Property Committee and the partnership.
As a result of the redevelopment of the premises, permitted by order of the head of the Perovo district administration of the city of Moscow dated March 25, 2004 N 109, the area of the rented premises changed and amounted to 525.6 square meters. m.
The lease agreement dated 02/15/1995 N 4-108/95 was concluded, as expressly stated in its text, on the basis of the purchase and sale agreement dated 04/11/1992 N 04-00239/92, therefore there is no provision in it regarding the right of the tenant to purchase the occupied premises does not mean that the plaintiff is not subject to the provisions provided for in paragraph 13 of Art. 43 of the Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property.”
In accordance with paragraph 13 of Art. 43 Federal Law dated December 21, 2001 N 178-FZ “On the privatization of state and municipal property» if all the property of a state or municipal enterprise, with the exception of the building or non-residential premises in which this enterprise was located, was acquired before the entry into force of Chapter IV of Part One of the Civil Code of the Russian Federation with the simultaneous conclusion of a lease agreement providing for the possibility of purchasing such a building or premises , the specified building or non-residential premises is subject to sale to the owner who has purchased all the property of the enterprise at market value.
The plaintiff applied with an application for the sale of the leased premises to the Moscow City Property Department, authorized to make decisions on the sale of property of the city of Moscow, 04/06/2004 (entry No. 70-124/04) - before the expiration of the established two-year period for exercising the right to purchase the premises.
The market value of the premises rented by the plaintiff during this period was 6,628,894 rubles, which is confirmed by the assessment report N 04-0117-0044/04-1, compiled by PBOYUL Z. on the instructions of DIGM.
The plaintiff cannot bear negative consequences due to the rise in price of real estate during the period when the DIGM evaded making a decision to sell the property, therefore the redemption price of the property should be determined based on its market price at the time the plaintiff filed an application for redemption.
The objections of the defendant and the 3rd party are presented without taking into account the established judicial practice (Resolution of the Federal Antimonopoly Service of the Moscow Region dated 04.10.2006 N KG-A40/9151-06), and therefore are subject to rejection.
The costs of the state fee must be attributed to the defendant, but he is exempt from paying it, therefore the state fee paid when filing a claim must be refunded.
Guided by Art. 43 of the Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property”, Art. Art. 8, 12, 195, 196, 199, 200, 217, 432, 445 Civil Code of the Russian Federation, art. Art. 65, 104, 105, 110, 167, 170, 173, 176, 180, 181 Arbitration Procedure Code of the Russian Federation, court
oblige the State Unitary Enterprise for the sale of property in Moscow to conclude a purchase and sale agreement with Luna LLC for non-residential premises with an area of 525.6 square meters. m (floor 1, room II, rooms 1, 2, 2a, 3, 3a, 3b, 4 - 9, 9a, 9b, 10 - 14, 14a, 15, 15a, 16, 16a, 17, 17a, 19 , 23, 23a, 24, 25), located at the address: Moscow, st. Perovskaya, 10, bldg. 1, priced at RUB 6,628,894.
Return 2,000 (two thousand) rubles from the federal budget to Luna LLC. state duties.
The decision can be appealed within a month to the arbitration court of appeal.
Collection of debt and interest for the use of other people's funds under a surety agreement concluded for the purpose of executing a real estate purchase and sale agreement
ARBITRATION COURT OF MOSCOW
In the name of the Russian Federation
The operative part was announced on October 8, 2007.
The date of production of the decision in full is October 12, 2007.
Moscow Arbitration Court consisting of:
Chairman: A.
court members: individually
when keeping the minutes by judge A.
with the participation of representatives:
from the plaintiff: B. - pas.
from the defendants: P. - ud. 8926, ex. dated 03/22/2007 ex. dated March 22, 2007, G. - pas., dov. dated June 19, 2007, ex. dated June 19, 2007, ex. dated May 25, 2007
considered the case on the claim of RAMENKA LLC
to American Traders LLC; LLC "Seventh Point"; LLC Shop N 40 "Sollolaki"
on the collection jointly and severally of RUB 52,171,895. 01 kop.
The court explained procedural rights and obligations, as well as the right to challenge the case, the right to consider the case with the participation of arbitration assessors, to refer the dispute to an arbitration tribunal, the right to contact a mediator to resolve the dispute, and to enter into a settlement agreement.
The court session was adjourned from 10/03/2007 to 10/08/2007.
installed:
the claim was filed for the recovery from the defendants jointly and severally of 52,171,895 rubles. 01 kopecks, amounting to 49,181,415 rubles. 69 kopecks debt and 2,990,479 rubles. 32 kopecks interest for the use of other people's funds until March 27, 2007, due to failure to fulfill agreement No. 1/2006-3 dated June 30, 2006.
The case is being considered after the abolition of the FAS MO.
By decision of the Moscow Arbitration Court dated March 30, 2007, 52,171,895 rubles were jointly and severally recovered from the defendants. 01 kop., including: 49,181,415 rub. 69 kopecks debt and 2,990,479 rubles. 32 kopecks percent, as well as 100,000 rubles. expenses for paying state duty.
By Resolution of the Federal Antimonopoly Service of Moscow dated July 6, 2007 N KG-A40/6200-07, the court decision in case No. A40-59341/06-89-469 dated March 30, 2007 was canceled and the case was transferred for a new trial. This resolution states that the court did not examine clause 3.2, according to which the guarantor is not responsible to the creditor for the fulfillment of the debtor’s obligation secured by this agreement, in the event that, through the fault of the creditor, a purchase and sale agreement for the property is not concluded between the creditor and the guarantor. Taking into account the above, the court of first instance must take into account the above and adopt a legal and justified judicial act in the case.
The plaintiff supported the claims. The defendant objected to the satisfaction of the claim on the grounds set out in the response.
Following the instructions of the FAS Moscow Region, having examined the case materials, having listened to the arguments of the plaintiff’s representative, and having assessed the evidence presented, he believes that the claims must be satisfied on the following grounds.
As can be seen from the case materials, agreement No. 1/2006-3 dated June 30, 2006 was concluded between the plaintiff, defendant American Traders LLC and Seventh Continent LLC (case sheets 39 - 40).
By clause 5 of agreement 1/2006-3 dated June 30, 2006, the former owner (defendant American Traders LLC) agreed to return the amount of unaccounted advances to the tenant (plaintiff in this dispute).
Clause 2 of agreement No. 1/2006-3 dated June 30, 2006 established that the amounts advance payments, not counted as rent under lease agreement No. 02/2002 dated January 28, 2002; N 01/2002 dated January 28, 2002; N 01/2004/E dated September 30, 2004, are indicated in the reconciliation act No. 1/AT dated June 30, 2006, signed between the defendant American Traders LLC and the plaintiff Ramenka LLC.
From paragraph 1.3. reconciliation act No. 1/AT dated June 30, 2006, it is seen that the total amount of unaccounted advances is 49,181,415 rubles. 69 kopecks, including: 22,940,486.11 rubles. uncredited advance payment under lease agreement No. 02/2002 dated January 28, 2002, RUB 24,516,252. 74 kopecks uncredited advance payment under lease agreement No. 01/2002 dated January 28, 2002 and RUB 1,724,676. 82 kopecks, unaccounted advance payment under lease agreement No. 01/2004/E dated September 30, 2004.
In order to ensure the fulfillment by the defendant, American Traders LLC, of its obligations under Agreement 1/2006-3 dated June 30, 2006, surety agreements were concluded.
Surety agreement No. 1/2006-P dated June 30, 2006, concluded between the plaintiff - RAMENKA LLC and the defendant Sedmaya Tochka LLC and surety agreement N 1-1/2006-P dated June 30, 2006, concluded between the plaintiff - LLC "RAMENKA" and the defendant LLC Store No. 40 "Sollolaki".
In accordance with the terms of the specified guarantee agreements, the guarantors (defendants in this dispute) - LLC Store N 40 "Sollolaki" and LLC "Sedmaya Tochka" - undertook to answer to the creditor (plaintiff) for the fulfillment by the defendant - LLC "American Traders" of monetary obligations arising from agreement dated June 30, 2006 No. 1/2006-3 in the same amount as the debtor (defendant) American Traders LLC, but not limited to, payment of interest, reimbursement of legal costs for debt collection and other losses of creditors in full caused by non-fulfillment or improper fulfillment of obligations by the debtor and transfer the amount of debt within 10 calendar days from the date of receipt of the creditor’s request (clauses 1.2 and 2.1 of the surety agreements).
In accordance with Art. 363 of the Civil Code of the Russian Federation, in case of non-fulfillment or improper fulfillment by the debtor of the security guarantee obligation, the guarantor and the debtor are jointly and severally liable to the creditor. The guarantor is liable to the creditor to the same extent as the debtor, including the payment of interest caused by non-fulfillment or improper fulfillment of the obligation by the debtor, unless otherwise provided by the guarantee agreement.
According to clause 1.3. guarantee agreements, the liability of the guarantors to the creditor is joint and several.
As can be seen from the case materials, the plaintiff sent telegrams to the defendants demanding payment of funds in the total amount of 49,181,415 rubles. 69 kopecks, which were received by the defendants on August 8, 2006, as confirmed by notifications of delivery of the telegram. In addition, the plaintiff sent registered letters to the defendants with similar demands.
The defendants did not respond to the plaintiff’s demands and did not repay the debt.
The court considers the plaintiff’s arguments justified and proven, while in accordance with Art. Art. 309, 310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation; unilateral refusal to fulfill the obligation is not allowed.
The court cannot accept the defendants' arguments that the guarantors' obligations have ceased, since it was the plaintiff's fault that contracts for the purchase and sale of real estate were not concluded: under surety agreements dated June 30, 2006 No. 1/2006-P at the address: Moscow, Zelenograd , Savelkinsky proezd, 8 and dated 06/30/2006 1-1/2006-P at the address: Moscow, Leningradsky Prospekt, 78, bldg. 1. In addition, the defendants also refer to the fact that the surety agreements were concluded under a severable condition, which is provided for in clause 3.2. agreements from which it follows, as already indicated above, that the guarantor is not responsible to the creditor for the fulfillment of the obligation of the debtor (American Traders LLC) secured by this agreement, in the event that, through the fault of the creditor, purchase and sale agreements are not concluded between the creditor and the guarantors real estate objects.
The court cannot agree with the defendant’s arguments that these agreements were concluded under a severable condition.
In accordance with paragraph 2 of Art. 157 of the Civil Code of the Russian Federation, which the defendants refer to, according to which a transaction is considered completed under a severable condition if the parties have made the termination of rights and obligations dependent on a circumstance for which it is unknown whether it will occur or not. Thus, this rule says that the condition must be a circumstance depending on the will of the parties, that is, the parties cannot know whether this circumstance will occur or not. In addition, the conclusion of an agreement is, first of all, the will of the parties expressed in writing, thus the conclusion of purchase and sale agreements by the parties under surety agreements depends only on the will of the parties, based on the above, the defendants’ reference to clause 3.2. guarantee agreements are untenable.
At the same time, the condition of clause 3.2. agreement in terms of performance by the parties, the court believes that the fulfillment by the guarantors of the obligation under the surety agreements is made dependent not on the circumstances of the non-conclusion of the purchase and sale agreement, but on the fault of the creditor in their failure to conclude them. According to the meaning and content of Art. 401 of the Civil Code of the Russian Federation - guilt (intention or negligence) is an element of liability and cannot relate to circumstances upon the occurrence of which the parties can establish the occurrence of any obligations. By virtue of paragraph 2 of Art. 157 of the Civil Code of the Russian Federation - the creditor’s guilt cannot be a circumstance that the parties do not know about and cannot know whether it will occur or not.
In accordance with paragraph 1. Art. 549 of the Civil Code of the Russian Federation - under an agreement for the purchase and sale of real estate (agreement for the sale of property), the seller undertakes to transfer into the ownership of the buyer a plot of land, a building, a structure, an apartment or other real estate.
In accordance with Art. 131 of the Civil Code of the Russian Federation, ownership and other real rights to immovable things, restrictions on these rights, their emergence, transfer and termination are subject to state registration in the Unified State Register of Rights to Real Estate and transactions with it; registration is subject to: ownership right, economic management right, operational right management, the right of lifelong inheritable possession, the right of permanent use, mortgage, easements, as well as other rights in cases provided for by this Code and other laws.
Having examined the documents presented by the parties, the court did not establish the creditor’s guilt before the guarantors in the failure to conclude purchase and sale agreements.
In accordance with Art. 65 of the Arbitration Procedure Code of the Russian Federation - each person participating in the case must prove the circumstances to which he refers as the basis for his claims and objections.
The defendants, in turn, did not provide evidence that the plaintiff did not intend to enter into sales contracts; on the contrary, the case materials presented correspondence between the parties, from which it is clear that Ramenka LLC intends to enter into sales contracts and also proposed to hold a meeting in in order to agree on a payment schedule
In connection with the above, the court considers the plaintiff’s claim to collect jointly and severally 49,181,415 rubles to be legitimate, justified and subject to satisfaction. 69 kopecks, since the plaintiff’s guilt in not concluding contracts has not been established, and refusal to fulfill obligations contradicts Art. Art. 309, 310 of the Civil Code of the Russian Federation, in this case from the defendants’ fulfillment of obligations under surety agreements in terms of debt payment.
In connection with non-payment of the debt, the plaintiff makes a demand for the collection of interest for the use of other people's in cash in accordance with Art. 395 of the Civil Code of the Russian Federation in the amount of 2,990,479 rubles. 32 kopecks until March 27, 2007, based on the refinancing rate of the Central Bank of the Russian Federation of 10.5% per annum and asks to recover the specified amount from the defendants jointly and severally referring to clause 1.2. guarantee agreement.
The court considers the plaintiff's demand to collect from the defendants jointly and severally interest for the use of other people's funds in the declared amount of RUB 2,990,479 justified. 32 kopecks, since there was a failure to fulfill a monetary obligation by the defendants.
In accordance with Art. 110 of the Arbitration Procedure Code of the Russian Federation, the costs of state duty incurred by the plaintiff are subject to recovery from the defendants in full, since the demands stated in the claim are justified.
The court, guided by Art. Art. 8, 12, 131, 157, 307, 309, 310, 363, 395, 429, 549 of the Civil Code of the Russian Federation and Art. Art. 4, 65, 75, 49, 110, 121, 123, 156, 170 - 175 Arbitration Procedure Code of the Russian Federation,
Buying real estate: how to pay for it correctly (analysis of judicial practice) (Chakinsky A.)
Article posted date: 03/26/2018
So, it's done. The money for the apartment has been paid, the contract has been signed and registered, the keys to the apartment have been received. Can you celebrate a housewarming party and calmly settle into a new place? Not always. It is possible that an offended seller, who believes that he “cheaped up” when making a transaction, will sue to terminate the real estate purchase and sale agreement and declare that he did not receive any money. We will tell you further how to protect yourself from such a disappointing scenario...
PAYMENT METHODS FOR REAL ESTATE
The practice of real estate transactions in our country has resulted in four main ways for the buyer to transfer funds to the seller. The simplest of them is the transfer of cash “from hand to hand”. The second method is by renting an individual bank safe or, in simple terms, a “safe deposit box”. It is also possible to pay using banking institutions, in particular by opening a bank letter of credit. And finally, the last method is to transfer money when buying a home using a notary deposit.
MONEY "FROM HANDS TO HANDS": CONTRADICTORY COURT PRACTICE
The most common method. Somewhere in the area of the notary's office, the buyer transfers money to the seller for the desired property. The real estate purchase and sale agreement (option - in the transfer deed) indicates that the money has been received by the seller in full. State registration of real estate is carried out. Everything is fine? No, it's not that simple.
The fact is that domestic judicial practice has two completely opposite opinions on the issue under consideration.
In the first case, the domestic Themis claims that since the contract states that payment for the much-desired purchased “corner” has been made, and the seller has not provided evidence to the contrary, then they have received money for the property.
K.V.V. filed a lawsuit against Ya.O.Sh. on invalidating the purchase and sale agreement for 1/2 share in the right of common shared ownership of a land plot located at:<...>region, village<...>, st.<...>, indicating in support of the claims that on March 24, 2010 between him and Ya.O.Sh. a purchase and sale agreement for the said real estate was concluded. April 20, 2010 for Ya.O.Sh. The title to this real estate has been registered, but the defendant has not yet made payment under the contract.
The defendant did not recognize the claim and asked to refuse to satisfy the stated demands.
By the decision of the Leningradsky District Court of the Krasnodar Territory dated May 29, 2013, in satisfaction of the claims of K.V.V. was refused.
By the appeal ruling of the judicial panel for civil cases of the Krasnodar Regional Court dated August 29, 2013, the decision of the trial court was canceled. The defendant filed a cassation appeal against this appeal ruling.
Having checked the case materials and discussed the arguments of the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation found that there are grounds provided by law for satisfying the cassation appeal and canceling the Appeal ruling of the Judicial Collegium for Civil Cases of the Krasnodar Regional Court dated August 29, 2013.
In the court hearings of the courts of first and appellate instances, the defendant’s representative referred to the fact that the plaintiff’s receipt of funds under the purchase and sale agreement dated March 29, 2010 was confirmed by the text of the agreement itself, paragraph 3 of which stated that the settlement was made between the parties in full before it was signed.
This agreement has all the essential conditions and has been passed state registration, while the plaintiff did not present any written evidence indicating the unlawfulness of the defendant’s actions when concluding this agreement and is not included in the case materials. Therefore, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation determined: The appeal ruling of the Judicial Collegium for Civil Cases of the Krasnodar Regional Court dated August 29, 2013 is cancelled, and the case is sent for a new trial to the appellate court (Definition of the Supreme Court of the Russian Federation dated 09.09.2014 N 18- KG14-99).
The second case is when the courts present the exact opposite position.
M.S.N. went to court, justifying his demands by the fact that he is the owner of an apartment located at the address:<...>, in a relationship<...>shares of which<...>a purchase and sale transaction was concluded between him and M.A.A., on whose behalf M.N.A.’s mother acted. Meanwhile, the funds for the alienated<...>the share has not yet been paid to him, in connection with which he asked to recover from the defendant<...>rubles, interest on the use of other people's funds.
The court decision partially satisfied the claims.
The defendant did not agree with the court decision and, in her appeal, asked to have it overturned as illegal and unfounded.
After hearing the plaintiff’s explanations, checking the case materials, and discussing the arguments of the appeal, the judicial panel came to the following conclusions.
From the case materials it follows that, according to Section IV of the agreement, the price of a share of the apartment is determined in the amount<...>rub., it is also determined that the buyer pays the seller<...>rub. on the day of signing the contract before the state registration of the purchase and sale agreement.
The plaintiff, substantiating his claims, indicated that the buyer (defendant) had not made payment for the purchased property under the contract. Analyzing the evidence collected in the case, taking into account that the defendant did not present legally acceptable evidence to substantiate his arguments, the court of first instance made the correct conclusion that the claims for recovery of funds from the buyer must be satisfied.
From the case materials it follows that the fact of concluding the above-mentioned purchase and sale agreement and transfer of the share by the defendant was not disputed; therefore, the defendant, as the buyer of real estate, had to provide the court with written evidence confirming the transfer of the amount of money to the plaintiff under this agreement.
Meanwhile, reliable written evidence confirming payment under the contract for the sale and purchase of real estate, M.N.A. not presented. Under such circumstances, the court's decision is legal and reasonable, consistent with the established circumstances and requirements of the law. There are no legal grounds for its cancellation based on the arguments of the appeal (Appeal ruling of the Supreme Court of the Republic of Karelia dated December 1, 2015 in case No. 33-4547/2015).
We also note that, according to Russian courts, evidence of the transfer of money must be written. Courts do not take into account eyewitness testimony confirming the fact of transfer of money.
It seems that appropriate clarification is needed from the Supreme Court of the Russian Federation on whether the statement in the real estate purchase and sale agreement (transfer deed) that money has been received is considered the legal fact of its receipt, without providing any additional evidence, or not.
SAFETY BOX - "THE DEVIL IS IN THE DETAILS"
If the parties to a real estate purchase and sale agreement decide to carry out a transaction using a safe deposit box, then the following scheme is applied. A lease agreement for an individual bank safe (safety deposit box) is concluded with the bank, the parties to which are, among other things, both the buyer and the seller. The buyer deposits money in a safe deposit box, and the seller, in accordance with the terms of the lease agreement, after some time gains access to it to pick it up.
But “the devil is in the details,” and the most tricky terms of a safe deposit box rental agreement are usually written down small print. Possible result: the property is sold, and insurmountable obstacles arise to receiving funds from the safe deposit box...
Plaintiff R.E.V. filed a claim in court, in which she asked to invalidate the state registration of the right, on the basis of which E.N.V. became the owner of the land.
In support of the stated claims Z.I.N. indicates that under the said land purchase and sale agreement R.E.V. was obliged to pay her money in the amount of<...>rubles, but transferred only in cash<...>rubles, the remaining funds were placed in a safe deposit box. At the same time, according to the terms of the lease agreement concluded between the parties and the bank for an individual bank safe, receipt by the seller of Z.I.N. money paid for the land plot is possible only in the personal presence of the buyer’s spouse - R.A.N., who in every possible way avoided appearing at the bank, and therefore she did not receive the money due from the buyer under the contract.
Meanwhile, the case materials confirmed that the promised Z.I.N. funds in the amount of<...>rub. R.E.V. has not yet been paid for the disputed land plot, but this circumstance is not a basis for terminating the sale and purchase agreement (Appeal ruling of the Moscow City Court dated December 6, 2016 in case No. 33-43103/2016).
The plaintiff subsequently received the money from the safe deposit box following a court decision. But, you must agree that spending your time, energy and nerve cells, and also incurring additional legal costs was not part of her plans!
Another example in which the courts made the exact opposite conclusion that failure to receive funds from a safe deposit box is grounds for terminating a real estate purchase and sale agreement.
F. filed a lawsuit against M.A.S. on termination of the purchase and sale agreement for residential premises due to non-payment and return of the apartment to ownership. In support of her claims, the plaintiff stated that<...>year, an agreement for the purchase and sale of an apartment was concluded between the parties, in accordance with the terms of which the plaintiff sold the defendant her apartment at the address:<...>. The buyer transferred the amount of money by renting an individual bank safe at JSCB FORA-BANK, for which F. and M.A.S. entered into a lease agreement with JSCB FORA-BANK (JSC) for an individual bank safe with special conditions.
On March 20, 2015, the plaintiff contacted the bank to gain access to the safe deposit box with the presentation of a passport and a purchase and sale agreement, but the bank refused access to the safe deposit box because there was a typo in the agreement; in clause 5.1.1 F. is indicated by the buyer, but should be listed as the buyer M.A.S. From March 20 to March 23, 2015, the plaintiff called M.A.S. to visit the bank with him and correct the typo so that F. could gain access to the cell and receive funds for the sold apartment. On March 23, 2015, the plaintiff wrote to the bank to gain access to the safe deposit box, but she was denied this. The plaintiff had access to the safe deposit box until 03/25/2015, and from 03/26/2015 - access exclusively to the buyer. At the same time, the defendant did not appear at the bank, and the funds were not transferred to the plaintiff.
By the decision of the Lyublinsky District Court of Moscow dated August 13, 2015, in satisfaction of F.’s claim against M.A.S. the termination of the purchase and sale agreement for residential premises and the return of the apartment to ownership was refused.
The appeal ruling of the judicial panel for civil cases of the Moscow City Court dated February 16, 2016 ruled:
the decision of the Lyublinsky District Court of Moscow dated August 13, 2015 is cancelled, a new decision is made in the case, by which F.’s claims against M.A.S. partially satisfy.
Terminate the purchase and sale agreement for an apartment located at<...>, concluded between F. and M.A.S.<...>of the year. Return the apartment located at the address:<...>.
In the cassation appeal M.A.S. asked to cancel the appeal ruling of the judicial panel for civil cases of the Moscow City Court dated February 16, 2016, and to uphold the decision of the Lyublinsky District Court of Moscow dated August 13, 2015.
A ruling was made to refuse to transfer the case to the cassation court on the following grounds.
Refusing to satisfy F.'s claims, the court of first instance proceeded from the fact that the purchase and sale agreement does not contain conditions for settlement between the seller and the buyer by renting a safe deposit box, the settlement between the parties under the purchase and sale agreement is confirmed by the presence of the above receipt and the transfer deed , signed by the parties, and therefore there is no reason to believe that no settlement was made between the parties. In addition, neither the law nor the purchase and sale agreement gives the plaintiff the right to demand from the defendant (the buyer of the apartment) the return of the apartment transferred under the agreement in the event of a violation by the defendant of its obligations to pay the cost of the apartment.
The panel of judges, having considered the case on appeal, did not agree with the conclusions of the trial court.
If the buyer of real estate has registered the transfer of ownership, but has not made payment for the property, the seller, on the basis of clause 3 of Art. 486 of the Civil Code of the Russian Federation has the right to demand payment under the contract and payment of interest in accordance with Art. 395 of the Civil Code of the Russian Federation.
Registration of the transfer of ownership to the buyer of the sold real estate is not an obstacle to termination of the contract on the grounds provided for in Art. 450 Civil Code of the Russian Federation.
In accordance with the explanations contained in paragraph 65 of the joint Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N 10/22 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights rights" (paragraphs 1 - 4), the seller who has not received consideration from the buyer, who has registered the right of ownership for himself, has the right to file both a claim for payment and a claim for termination of the contract.
As the panel of judges pointed out, from the essence of the agreement for the purchase and sale of an apartment, the receipt by the seller from the buyer of the price for the goods sold is an essential condition of the purchase and sale agreement, since when selling the goods and transferring them into the ownership of the buyer, the seller first of all expects to receive a certain amount of money for it.
Accordingly, if the buyer does not pay the price specified in the sales contract for the property transferred to him, the seller is largely deprived of what he had the right to count on when concluding the contract, since if the seller of real estate, including apartments, knew that he would not receive monies under the purchase agreement, he would not enter into the purchase agreement and would not transfer the property to the buyer.
Having assessed the evidence collected in the case in its entirety, the judicial panel came to the conclusion that on the part of the buyer M.A.S. the purchase and sale agreement for the apartment was not executed because he did not pay for the apartment the price stipulated in the purchase and sale agreement, the seller of the apartment, F., did not receive the funds because she did not gain access to the bank safe, which contained the money due to her under the purchase and sale agreement cash.
Based on the foregoing, the judicial panel rightfully overturned the decision of the court of first instance and terminated the agreement for the sale and purchase of the apartment (Determination of the Moscow City Court dated April 28, 2016 No. 4g-4632/2016).
Thus, in this example, despite the fact that the real estate purchase and sale agreement was ultimately canceled, inattentive reading of the lease agreement for an individual bank safe also led to negative consequences in the form of time lost by the injured party and legal costs.
PAYMENT DOCUMENTS AS INCREDIBLE EVIDENCE
Money for the purchased “home” can be transferred to the seller using banking institutions. For example, using bank letters of credit concluded between the seller and the buyer. This letter of credit specifies the terms of payment, notices to the seller and buyer, as well as their basic details. In this case, the seller opens a special account in his bank, and the buyer’s bank transfers the required amount to this account. But the seller will be able to receive it only after the transaction is completed and his bank receives all necessary documents, confirming the fact of its commission.
In this case, domestic judicial practice a striking uniformity is demonstrated. Almost any bank documents can serve as confirmation of a real estate purchase and sale transaction. This follows from the legal analysis of the content of Art. 161 - 162 of the Civil Code of the Russian Federation and set out in Resolution No. 245pv-01pr of March 27, 2002, the legal position of the Presidium of the Supreme Court of the Russian Federation on their interpretation and application in relation to the issue of admissible evidence confirming the fact of transfer of money by the buyer to the seller in real estate purchase and sale transactions property. It is necessary to provide written evidence to confirm the transfer of money for the purchased property (payment documents: bank order, receipt, etc.).
DEPOSIT WITH A NOTARY AS A GUARANTEE OF RELIABILITY OF THE TRANSACTION
And finally, from January 1, 2015, it became possible to carry out transactions for the purchase and sale of real estate using a notary’s deposit. This scheme works as follows. The buyer transfers the money to a special deposit account of the notary. He certifies the transaction, the buyer’s ownership is registered by Rosreestr, and then the notary transfers funds to the seller.
In this case, a legal dispute about whether the buyer made payment for the property simply cannot arise. Moreover, the buyer’s deposit of funds into the notary’s deposit indicates his intention to execute the real estate purchase and sale agreement (Appeal ruling of the Krasnoyarsk Regional Court dated September 22, 2014 in case No. 33-9172/2014).
LET'S SUM IT UP
So, let’s draw conclusions about how best to act as a prudent real estate buyer.
Are you planning to transfer money from hand to hand? Request from the seller a receipt, written in his own hand, stating that he has received the funds in full.
Transferring money using a safe deposit box? Read her lease agreement carefully.
Transferring money through a bank? The method is reliable, but be prepared to incur costs associated with bank commissions, etc.
The best way is to use a notary's deposit! As the hero of one said cult film, it's inexpensive, reliable and practical!
See changes for the last month
ConsultantPlus, 03/17/2010
Guide to judicial practice: purchase and sale. General provisions
Chapter 30. Purchase and sale
§ 1. General provisions on purchase and sale
Article 454. Sale and purchase agreement
Issues of judicial practice on the interpretation and application of Art. 454 Civil Code of the Russian Federation
1. Consequence of the absence of a reference to the agreement concluded between the parties in the delivery note >>>
2. Possibility of recognizing the executed sales contract as not concluded >>>
3. Consequences of transfer of goods in the absence of a concluded supply agreement >>>
4. Purchase and sale of bills of exchange >>>
5. Purchase and sale of receivables >>>
6. Possibility of applying the provisions on purchase and sale to the sale of a share in the authorized capital >>>
7. Possibility of applying the provisions of Chapter. 30 of the Civil Code of the Russian Federation when transferring exclusive rights >>>
8. Correlation of REPO transactions with the purchase and sale agreement >>>
1. Consequence of the absence in the delivery note of a reference to the agreement concluded between the parties
1.1. Conclusion from judicial practice: The absence of a reference to the delivery agreement concluded between the parties in the delivery note indicates that the goods were supplied under a one-time purchase and sale transaction.
Arbitrage practice:
Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated October 13, 2009 in case No. A17-4447/2008
"...As follows from the case materials, the Company (supplier) and the Entrepreneur (buyer) entered into a supply agreement dated 01.02.2007 N 425/07 for the supply of food products. The plaintiff presented invoices for the period from February to September 2007 as evidence of the debt N 5523, 6556, 9299, 10601, 12268, 15188, 15715, 16257, 17092, 20318, 20320, 20322, 20863, 24125, 25838, 25883, 26461, , 30163, 30165, 32348, 33103, 33566, 33567, 33577 , 33569, 33578, 36631, 41094, 41115, 41082 for a total amount of 677,208 rubles, powers of attorney for them and invoices for payment.
The appellate court found that invoices, powers of attorney for receiving goods and invoices do not contain reference to the supply agreement dated 01.02.2007 N 425/07, therefore, applying Article 486 of the Civil Code of the Russian Federation, it made a reasonable conclusion that there is a dispute between the parties one-time transactions with the defendant’s obligation to pay for the goods after transfer of the goods..."
Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated September 25, 2009 in case No. A43-29475/2008-29-441
“...Since the goods and shipping invoices dated November 8, 2007 N 00827, available in the case materials, in violation of clause 1.2 of the disputed agreement, do not contain references to it, the courts rightfully regarded the delivery under the invoices as non-contractual.
These invoices contain information about the name, price and quantity of goods accepted by TD Rastyapino LLC, which allows the parties’ actions to be qualified as concluding a one-time purchase and sale transaction.
Thus, the obligations of the parties to transfer and accept the disputed goods are subject to application of the rules of § 1 of Chapter 30 of the Civil Code of the Russian Federation on obligations arising from sales contracts..."
Resolution of the Federal Antimonopoly Service of the West Siberian District dated October 21, 2009 in case No. A46-5217/2009
"...The appellate court, upon re-examining the case materials, came to the conclusion that the supply of alcoholic beverages was carried out under one-time transactions, documented by waybills containing information about the name and quantity of the transferred goods. At the same time, the appellate court considered that it was not there is reason to evaluate the supply agreement dated December 20, 2005 N 1015 in the case, since the presented invoices do not contain instructions for the transfer of alcoholic products in pursuance of this agreement.
The Cassation Board believes that these conclusions of the courts were made in accordance with Article 71 of the Arbitration Procedural Code of the Russian Federation on the basis of a full and comprehensive study of all the circumstances and evidence in their totality in the case, with the correct application of the rules of substantive law.
One must agree with the conclusion of the appellate court that the supply of products under the named invoices represents one-time purchase and sale transactions, to which the provisions of Chapter 30 of the Civil Code of the Russian Federation apply..."
Resolution of the Federal Antimonopoly Service of the Moscow District dated January 18, 2010 N KG-A40/14193-09 in case No. A40-57077/09-128-377
“...So, from the invoices presented in the case materials, it is clear that the contract of May 28, 2007 No. 718 is indicated as the basis for the supply.
Meanwhile, the courts of first and appellate instances, which considered the present dispute on the merits of the stated requirements, established that an agreement with the specified details was not concluded between the parties.
At the same time, in the invoices presented in the case materials there are no references to agreements No. 44713 and 44795 of January 1, 2007, No. 44874 of December 31, 2007, and therefore the courts had no grounds for applying the provisions provided for in these agreements .
The courts of both instances rightfully qualified the controversial legal relations of the parties as one-time purchase and sale transactions, in which the terms of the name and price of the goods were agreed upon by the plaintiff and the defendant in the invoices, which does not contradict Art. 432, part 3 art. 455 of the Civil Code of the Russian Federation..."
Resolution of the Federal Antimonopoly Service of the Moscow District dated October 14, 2009 N KG-A41/10266-09 in case No. A41-18039/09
"...The courts of both instances found that the delivery of goods by the plaintiff to the defendant was confirmed by waybill No. 298179 dated August 11, 2005 for a total amount of 229,106 rubles. 93 kopecks.
The appellate court, having assessed the said invoice according to the rules of Art. 71 of the Arbitration Procedural Code of the Russian Federation, came to the conclusion that it is a one-time purchase and sale transaction, since the supply agreement dated August 1, 2005 N 05090030-86, to which the plaintiff refers in statement of claim, is not indicated as a basis for delivery in this invoice.
In accordance with paragraph 1 of Art. 486 of the Civil Code of the Russian Federation, the buyer is obliged to pay for the goods immediately before or after the seller transfers the goods to him, unless otherwise provided by this Code, another law, other legal acts or the purchase and sale agreement and does not follow from the essence of the obligation.
Since the delivery of goods under invoice No. 298179 dated August 11, 2005 was not carried out within the framework of contract No. 05090030-86 dated August 1, 2005, the appellate court came to the correct conclusion that the claims for the recovery of a penalty in the amount of 152,553 rubles. 31 kopecks based on the specified agreement are not subject to satisfaction..."
Resolution of the Federal Antimonopoly Service of the Moscow District dated July 22, 2002 N KG-A40/4597-02
"...By the decision of March 6, 2002 of the Moscow Arbitration Court, left unchanged by the decision of the appellate instance of the same court of May 8, 2002, the claim of ORFE CJSC for the recovery of 180,734 rubles from Kubanmedstrakh-Pharmacy LLC was satisfied. , constituting the debt for medical products supplied in pursuance of contract No. 46/98k dated February 6, 1998 under invoices No. 9801171 and 9801167.
Recognizing the claims as subject to satisfaction, the courts of the first and appellate instances proceeded from the fact that the controversial relationship arose from one-time purchase and sale transactions, since invoices No. 9801171 and 9801167 do not contain references to the agreement of February 6, 1998 No. 46/98k, and the defendant had to make payment for the received products within the time limits established by Article 486 of the Civil Code of the Russian Federation.
In resolving this dispute, the courts of first and appellate instances fully and comprehensively examined the evidence presented, established all the circumstances relevant to the case, made correct conclusions both about the nature of the disputed relationship and the existence of grounds for satisfying the claims, and did not commit violations of any norms substantive law, nor procedural law..."
Resolution of the Federal Antimonopoly Service of the Ural District dated October 12, 2009 N F09-7749/09-C3 in case N A50-5692/2009
"...As follows from the case materials, on January 17, 2008, supply agreement No. 07 was concluded between the Permzheltrans-Service company (supplier) and the Perm Motor Locomotive Repair Plant Remputmash company (customer), in accordance with clause 1.1 of which the supplier obliged deliver, and the customer accepts and pays for, the products in accordance with the specifications, which are an integral part of the contract.
The arbitration court found that the company "Permzheltrans-service" delivered to the company "Perm Locomotive Repair Plant "Remputmash" goods according to the invoice dated 10/08/2008 N 19 in the amount of 3,003,890 rubles. 60 kopecks.
Since the company "Perm Motor Locomotive Repair Plant "Remputmash" did not pay the cost of the goods supplied, the company "Permzheltrans-service", in accordance with clause 7.2 of the supply agreement dated January 17, 2008 N 07, sent a claim to the customer dated January 19, 2009 N 006 with a voluntary offer order to repay the debt in the amount of 3,003,890 rubles and pay interest under Article 395 of the Civil Code of the Russian Federation in the amount of 96,289 rubles.
Due to the failure of the Perm Locomotive Repair Plant Remputmash company to comply with the requirements set out in the claim, the Permzheltrans-service company filed this statement of claim with the arbitration court.
The Court of Appeal recognized the satisfaction of the claims of the Permzheltrans-service company as legitimate, but at the same time pointed out that in this case there was a one-time supply of goods, since the disputed delivery note does not contain a reference to the supply agreement dated January 17, 2008 No. 07.
The conclusion of the court of appeal is correct and is confirmed by the materials of the case..."
Resolution of the Federal Antimonopoly Service of the Ural District dated March 3, 2009 N F09-866/09-C5 in case N A60-14932/2008-C9
"...Resolving the dispute, the court of first instance proceeded from the fact that the case materials did not contain specifications for the contract dated January 24, 2008 N 3-642/08, the mentioned invoices do not contain references to the contract, therefore the transfer of goods under them should be considered as one-time sales transactions...
The terms of the agreement dated January 24, 2008 N 3-642/08 are not subject to application to the legal relations of the parties for the supply of goods under invoices dated December 28, 2007 N 92 and dated February 26, 2008 N 1288, since the transfer of goods under them is qualified by the court as one-time sales transactions . Accordingly, the relations of the parties are regulated by Ch. 30 of the Civil Code of the Russian Federation, which does not exclude the possibility of payment for the goods after they are transferred to the buyer..."
Resolution of the Federal Antimonopoly Service of the Ural District dated January 15, 2009 N F09-10351/08-C5 in case N A71-3636/2008
"...As established by the court, the Tsentrmetall-Orenburg company (supplier) and the Bashavtotrans enterprise (buyer) signed an agreement for the supply of products dated 01.06.2007 N 093/1, under the terms of which the supplier, during the validity period of the said agreement, undertakes deliver, and the buyer accepts and pays for the products in the manner and within the terms stipulated by the terms of the contract. The range, quantity and price of products are agreed upon by the parties through negotiations and are indicated in the invoices, which are an integral part of the contract (clause 1.3 of this contract).
The terms of the purchase and sale agreement regarding the goods are considered agreed upon if the agreement makes it possible to determine the name and quantity of the goods (clause 3 of Article 455 of the Civil Code of the Russian Federation).
The court found that in the invoices submitted by the Tsentrmetall-Orenburg company in support of the claim, there is no reference to the agreement dated 01.06.2007 N 093/1. The plaintiff did not provide any other evidence confirming the fact that the parties agreed on the name and quantity of the goods that are the subject of delivery under this agreement (Article 65 of the Arbitration Procedure Code of the Russian Federation).
Consequently, as correctly stated by the court of appeal, a relationship arose between the parties regarding the supply of goods under one-time transactions (Article 506 of the Civil Code of the Russian Federation)..."
Resolution of the Federal Antimonopoly Service of the Ural District dated June 26, 2006 N F09-5306/06-C5 in case N A71-480/05
"... Having established that the fact of delivery of goods under one-time transactions is confirmed by invoices, in which there are marks (signature and seal of the defendant) about receipt of the goods, the calculation of the debt was carried out by the plaintiff correctly, the defendant did not provide evidence of full payment for the goods received from the plaintiff, the courts reasonably , in accordance with Articles 309, 486 of the Civil Code of the Russian Federation, satisfied the claims.
The arguments of the applicant of the cassation appeal that the delivery of goods was made within the framework of the supply agreement dated November 1, 2004, and not under one-time sales transactions, are rejected, since the invoices do not contain references to the said agreement.
The cassation court believes that the dispute was resolved by the arbitration court in accordance with the current legislation, the factual circumstances of the case were established on the basis of a comprehensive, complete and objective study of the evidence presented, and the court's conclusions correspond to these circumstances. Violations of substantive and procedural law, which, by virtue of Art. 288 of the Arbitration Procedural Code of the Russian Federation may be the basis for the annulment of judicial acts, it has not been established..."
Dzerzhinsky District Court of Orenburg (Orenburg Region) - Civil and administrative
Legal acts, and in the absence of such conditions and requirements - in accordance with business customs and other usually imposed requirements. By virtue of clause 1 of Art. 454 of the Civil Code of the Russian Federation, under a sales contract, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this goods and pay for...
Decision No. 2-1723/2018 2-1723/2018~M-1418/2018 M-1418/2018 dated September 28, 2018 in case No. 2-1723/2018
Leninsky District Court of Kirov (Kirov Region) - Civil and administrative
The consideration of the case was duly notified; the court did not notify the reasons for failure to appear. The court, after hearing the parties and studying the written materials of the case, comes to the following conclusion. According to paragraph 1 of Article 454 of the Civil Code of the Russian Federation, under a sales contract, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this goods and pay for...
Decision No. 2-2806/2018 2-2806/2018~M-2373/2018 M-2373/2018 dated September 28, 2018 in case No. 2-2806/2018
Oktyabrsky District Court of Ufa (Republic of Bashkortostan) - Civil and administrative
Agreement. In this case, the terms of the agreement are determined by agreement of the parties, except in cases where the content of the relevant agreement is prescribed by law or other legal acts. According to Part 1 of Art. 454 of the Civil Code of the Russian Federation, under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this goods and pay...
Decision No. 2-3857/2018 2-3857/2018~M-3373/2018 M-3373/2018 dated September 28, 2018 in case No. 2-3857/2018
Central District Court of Tolyatti ( Samara Region) - Civil and administrative
Did not have. The court, having heard the explanations of the plaintiff’s representative and checked the case materials, considers the plaintiff’s demands to be satisfied in part on the following grounds. In accordance with Part 1 of Art. 454 of the Civil Code of the Russian Federation, under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this goods and pay for...
Decision No. 2-801/2018 2-801/2018~M-833/2018 M-833/2018 dated September 28, 2018 in case No. 2-801/2018
Vyatskopolyansky District Court (Kirov region) - Civil and administrative
And the requirements of the law and other legal acts. Unilateral refusal to fulfill an obligation and unilateral change of its terms are not allowed, except in cases provided for by law. According to Art. 454 of the Civil Code of the Russian Federation, under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this goods and pay for...
Decision No. 2-2319/2018 2-2319/2018~M-2096/2018 M-2096/2018 dated September 28, 2018 in case No. 2-2319/2018
Dinskoy District Court (Krasnodar Territory) - Civil and administrative
Postal address: , Dinskoye rural settlement, DNT "Gardener", . 02/01/2006 The land plot is registered in the cadastral register and assigned a cadastral number. According to paragraph 1 of Art. 454 of the Civil Code of the Russian Federation, under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this goods and pay for...
Decision No. 2-1898/2018 2-1898/2018~M-1534/2018 M-1534/2018 dated September 28, 2018 in case No. 2-1898/2018
Ustinovsky District Court of Izhevsk ( Udmurt republic) - Civil and administrative
An agreement is considered concluded if an agreement is reached between the parties, in the form required in appropriate cases, on all the essential terms of the agreement. In accordance with paragraph 1 of Art. 454 of the Civil Code of the Russian Federation, under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this goods and pay for...
Decision No. 2-188/2018 2-188/2018(2-3975/2017;)~M-3436/2017 2-3975/2017 M-3436/2017 dated September 27, 2018 in case No. 2-188/2018
Sverdlovsk District Court of Kostroma (Kostroma Region) - Civil and administrative
Transfer the thing (product) into the ownership of another party (buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it (clause 1 of Article 454 of the Civil Code of the Russian Federation). In accordance with Art. 551 clause 1, art. 558 clause 3 of the Civil Code of the Russian Federation transfer of ownership of real estate under a real estate purchase and sale agreement...