General characteristics of the purchase and sale. General characteristics of the sales contract. Rent agreement and its types

General definition sales contract, contained in paragraph 1 of Art. 454 CC Civil Code Russian Federation... Part 2. M. 1996 .. Under the contract of sale, the party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (the buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it.

Contained in Chapter 30 of the Civil Code legal regulationsregulating the rights and obligations of the parties to the contract are, as a rule, dispositive, i.e. allowing the parties to independently determine the terms of the contract (clause 2 of article 456,457,458,459, etc.), which corresponds to the principle of freedom of contract, enshrined in article 421 of the Civil Code. The norms, which are of an imperative nature, are mainly aimed at protecting the interests of the parties to the agreement (clause 3 of article 455, clause 2 of article 461, clause 1 of article 462, clause 1 of article 472, article 473, etc.). The parties have the right, at their discretion, to establish the terms of the contract, except in cases where the content of the relevant is prescribed by law

The sales contract is consensual. The consensuality of the sales contract means that the contract is considered concluded, and the rights and obligations of the parties arise at the time they reach an agreement on the essential terms of the contract. In some cases, if the moment of conclusion and the moment of execution coincide, the contract can be considered real, for example: a retail sale contract in self-service stores Civil law, v.2. / Resp. Ed. E.A. Sukhanov. M .: BEK, 1996. С.64 ..

The purchase and sale agreement is onerous and bilateral. It is a synallagmatic contract, since the fulfillment of the buyer's obligations to pay for the goods is conditional on the seller's fulfillment of his obligations to transfer the goods to the buyer (clause 1 of article 328 of the Civil Code) Civil Code of the Russian Federation. Ch. 1. M. 1995 .. In other words, the buyer should not fulfill his obligations to pay for the goods until the seller fulfills his obligations to transfer the goods to him. If the contract of sale is concluded with the condition of advance payment for the goods by the buyer, the seller becomes the subject of counter performance, who may not fulfill the obligations to transfer the goods until the specified amount of prepayment is received from the buyer.

The subject of the sales contract is a product (thing, property), regarding which the parties have reached an agreement. The subject of the contract is the only essential condition of the sale and purchase agreement, since the contract is considered concluded and the conditions for the goods are agreed upon if the parties have reached an agreement on the name and quantity of the goods (clause 3 of Article 455 of the Civil Code). By general rule the price of the goods, the period of its transfer, the quality of the goods are not essential terms of the contract. Only for certain types of sales contracts the law establishes additional essential conditions. The introduction of additional essential conditions in the purchase and sale agreement allows to single out certain types of this agreement (retail purchase and sale, supply, sale of real estate, etc.) Vitryansky V.V. Purchase and sale (Chapter 30). In the book: GKRF. Part 2. Text. Comments. Alphabetic subject index. M., 1996. P.251 ..

Any things, both movable and immovable, individually defined or determined by generic characteristics, are recognized as goods under a sales contract. The general provisions on the sale and purchase of goods also apply to the sale of property rights, unless otherwise follows from the content or nature of these rights. In this sense, it is necessary to recognize that any onerous assignment of property rights (cession) is the sale of these rights, and the rules governing the transfer of creditor rights, and in particular the assignment of a claim (Art. 382-390 of the Civil Code), are subject to priority (in relation to general provisions on the sale and purchase of goods) application. A contract can be concluded for the sale and purchase of future goods, that is, those goods that will be created or purchased by the seller.

If, at the time of the conclusion of the sales contract, individually-specific things were lost by the seller as a result of their destruction, transfer of ownership of them to third parties, etc., the question of the fate of the sales contract should be decided depending on whether there were the buyer knows these circumstances. If the buyer, concluding the contract of sale, knew or should have known that the thing that is the object of sale was lost by the seller, there is a contract that must be recognized as not concluded due to the lack of agreement between the parties regarding the subject of the contract. In cases where the buyer at the time of the conclusion of the contract was not aware that an individually-defined thing serving as a good was lost by the seller, he, having subsequently discovered this circumstance, has the right to demand that this contract be recognized as invalid as concluded under the influence of deception (Article 179 of the Civil Code). Such a transaction is voidable, therefore, the buyer, instead of seeking to declare it invalid, has the right, on the basis that the contract is valid, to demand from the seller compensation for losses and the application of other measures of liability in connection with the failure of the latter to fulfill its obligations arising from the contract of sale ...

The purpose of a sales contract is to transfer ownership of a thing that serves as a good to the buyer. As a general rule, the right of ownership of the acquirer of the thing under the contract arises from the moment of its transfer, unless otherwise provided by law or contract. In cases where the alienation of property is subject state registration, ownership of the acquirer arises from the moment of such registration, unless otherwise provided by law (Article 223 of the Civil Code).

If the buyer ( entity) does not belong to the number of entities with the ownership right to the property assigned to it (for example, unitary state or municipal enterprises, institutions), the transfer of property by the seller (and, in appropriate cases, state registration) serves as the basis for the buyer to have a limited real right.

In relations of purchase and sale, state registration is subject to the transfer of ownership of real estate (Article 551 of the Civil Code), to an enterprise as a property complex (Article 564 of the Civil Code), as well as to residential buildings, apartments and other residential premises (Article 558 of the Civil Code) ). In cases of sale of enterprises and residential premises, the concluded purchase and sale agreements are also subject to state registration.

As a general rule, the alienation by the owner of the property to other persons entails the termination of the ownership of the latter (clause 1 of article 235 of the Civil Code). With regard to the sale and purchase, the seller's ownership rights cease from the moment the thing serving as a commodity is transferred to the buyer (in appropriate cases, from the moment the buyer's ownership right is registered). If the seller, not being the owner of the goods, alienates it on the basis of the powers granted to him to dispose of the goods, the transfer of the goods to the buyer (state registration) serves as the basis for the termination of the ownership of the person who is the owner of the goods, as well as the seller's powers to dispose of the goods. The exceptions are cases when the parties enter into an agreement with the condition of retaining ownership of the goods transferred to the buyer for the seller until payment for the goods or the occurrence of other specific circumstances. In such a situation, the seller, while remaining the owner of the goods, if the buyer does not pay for the goods within the specified time or if other circumstances stipulated by the contract do not occur, in which the ownership is transferred to the buyer, has the right to demand that the buyer return the goods transferred to him (Article 491 of the Civil Code).

The risk of accidental loss of or accidental damage to the goods passes to the buyer also from the moment when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer. However, in cases where the goods are sold while they are in transit (in particular, by transferring the bill of lading or other documents of title to the goods), the risk of accidental loss of or accidental damage to the goods passes to the buyer from the moment of the conclusion of the sales contract, unless otherwise provided by the contract itself or by the customs of business turnover (Article 459 of the Civil Code).

The parties to the contract of sale (seller and buyer) can be any subjects of civil law turnover: the state, individuals and legal entities.

As a general rule, the seller of the goods must be its owner or have another limited property right, from which the seller's right to dispose of the property that is the goods follows.

In cases stipulated by law or agreement, the powers to dispose of property may be granted to a person who is not the subject of ownership or limited property rights to this property. In particular, when concluding a sale and purchase agreement through a public auction, the seller signing the agreement is recognized as the organizer of the auction (clause 5 of article 448 of the Civil Code); when selling property in pursuance of a commission agreement, the seller under a sale and purchase agreement with the buyer of this property is a commission agent acting on his own behalf (Article 990 of the Civil Code); in the same manner, an agent concludes a sale and purchase agreement, acting on his own behalf on behalf and at the expense of the principal on the basis of an agency agreement (clause 1 of article 1005 of the Civil Code); the right to conclude transactions on its own behalf (including as a seller) is also granted to the trustee in relation to the property transferred to him under a trust agreement (clause 3 of article 1012 of the Civil Code).

The seller can be public law formations when selling state or municipal property that is not assigned to the legal entities formed by them.

Any person recognized as the subject of civil rights and obligations can be a buyer under a sales contract. By purchasing goods under a sales contract, the buyer, as a general rule, becomes its owner.

The exceptions are, firstly, state and municipal unitary enterprises that have the right of economic management or operational management (state-owned enterprises) for the property assigned to them, as well as institutions (subjects of the right of operational management). As buyers, they acquire the corresponding limited property right to the property, while the owner of the goods becomes the person who is the owner of the property assigned to these legal entities. Secondly, citizens or legal entities who are empowered to perform these actions on their own behalf by virtue of commission agreements, agency agreements or trust agreements do not become the owners of the goods purchased under the contract of sale.

Among the contracts of sale, there are contracts, the sellers and buyers under which, selling or purchasing goods, they act in the framework of their entrepreneurial activities. To legal relations arising from such contracts, some special rules apply to obligations related to the implementation of business activities.

At the same time, this circumstance does not give grounds for separating the so-called entrepreneurial purchase and sale agreement as an independent type of purchase and sale agreement. Civil law of Russia. Part two. Obligation law: course of lectures / Otv. Ed. HE. Sadikov. M. 1997. S. 11 .. Features of the legal regulation of obligations associated with the implementation of entrepreneurial activities equally apply to any obligation arising from any civil contract, and can not serve as a criterion for distinguishing a special "entrepreneurial" contract of purchase sales. On the contrary, the general provisions on the sale and purchase (§ 1, Chapter 30 of the Civil Code) apply to all sales contracts, regardless of whether their parties carry out business activities.

The subject of the sales contract is the seller's actions to transfer the goods to the buyer's ownership and, accordingly, the buyer's actions to accept this goods and pay the set price for it.

A number of scientists in their works reduce the subject of a sale and purchase agreement to the characteristics of the goods (its name and quantity) to be transferred to the buyer. Civil law. Textbook / Ed. A.P. Sergeeva, Yu.K. Tolstoy Part 2 M., 1997. S. 9. This approach seems simplistic and unreasonable. For example, O.S. Ioffe talks about the material objects of the purchase and sale agreement, which are understood as the property being sold and the amount of money paid for it; its legal objects - the actions of the parties to transfer property and pay money, as well as about volitional objects - the individual will of the seller and the buyer within the limits to which it is subordinate to the legislation of Ioffe O.S. regulating their relations. Obligations law. M., 1975. S. 211 .. According to M.I. Braginsky, legal relations arising from the contract of sale, have two kinds of objects: the actions of the obliged person and the thing, which as a result of such an action must be transferred to Braginsky M.I., Vitryansky V.The. Contract law. General Provisions. M., 1997.S. 224 ..

The subject of the contract is an essential condition of the sales contract. In this case, the condition of the contract of purchase and sale of the product is considered agreed if the contract allows you to determine the name and quantity of the goods (clause 3 of article 455 of the Civil Code). This provision applies only to the product; it does not exhaust the essential terms of the sales contract that define its subject matter. Simply the absence in the text of the agreement of other clauses regulating the seller's actions to transfer the goods to the buyer, as well as the latter's acceptance and payment of the goods received, is compensated by dispositive norms that determine the procedure and timing of these actions.

So, in cases where the seller's obligation to deliver the goods or transfer it to the buyer does not follow from the contract of sale, the seller's obligation to transfer the goods to the buyer is considered fulfilled at the time the goods are handed over to the carrier or the organization of communication for delivery to the buyer, unless otherwise provided by the contract (cl. 2 article 458 of the Civil Code).

The buyer is obliged to take actions that, in accordance with the usually presented requirements, are necessary on his part to ensure the transfer and receipt of the relevant goods (clause 2 of article 484 of the Civil Code), as well as pay for the goods directly before or after its transfer (clause 1 of article 486 GK).

However, their implementation often requires performing certain actions from both the seller and the buyer. For example, the fulfillment by the seller of the obligation to transfer the goods to a nonresident buyer is impossible without the latter informing its shipping details or details of a specific recipient; fulfillment by the buyer of the obligation to pay for the goods in case of a letter of credit settlement involves the seller taking the necessary actions to issue a letter of credit, etc. In such cases, they talk about the so-called creditor obligations of the counterparty under the contract, the implementation of which serves necessary condition for the debtor (seller or buyer) to fulfill the main obligation stipulated by the relevant term of the contract.

When buying and selling goods in installments or when buying and selling real estate, the contract price is a prerequisite, in other cases this element is not essential. The price in the contract of sale is free, negotiable, that is, agreed by the parties themselves. But in some cases it is limited by law: in public contracts for retail sale and supply, the price is set the same for all buyers. And for some goods of special importance, prices are directly set and regulated by the state.

The term of the purchase and sale agreement is not an essential condition, however, for delivery or sale with payment by installments, the term is of particular importance.

The term can be determined by a specific date, the expiration of a period of time, an indication of the occurrence of an event. If the term is not agreed by the parties, then according to Art. 314 of the Civil Code, the obligation must be performed within a reasonable time.

The price, subjective composition and subject of the contract determine its form. The sale of real estate is concluded by drawing up one document, signed by the parties, and is subject to mandatory state registration. Also writing form required for contracts with the participation of legal entities, for contracts between citizens, if their price is ten or more times the minimum wage.

Thus, the sales contract is consensual, bilateral and reimbursable. The parties to the purchase and sale agreement are citizens, legal entities and, in some cases, the state - the Russian Federation, constituent entities of the Russian Federation, municipalities... To recognize the contract of sale as concluded, the parties really need to agree and provide directly in the text of the contract only a condition on the quantity and name of goods. All other conditions related to the subject of the contract can be determined in accordance with the dispositive rules contained in the Civil Code.

The elements of a sale and purchase agreement are: parties (participants), the form and content of the agreement as a set of its terms.

Parties to the sales contract

The parties to the purchase and sale agreement - the seller and the buyer - can be any participants in civil turnover (individuals and legal entities, the state as a whole, state and municipal formations). They are subject to general requirements civil legislation on legal capacity and legal capacity:

• a party to the contract may be a capable citizen who has reached the age of majority, i.e. 18 years old;
• the law also permits the execution of sales contracts by persons without full legal capacity, in particular:
  • children under the age of 14 have the right to independently make both small household transactions and transactions for the disposal of funds provided by a legal representative or, with the consent of the latter, by a third party for specific purpose or for free disposal, as well as some other types of transactions permitted by law (clause 2 of article 28 of the Civil Code of the Russian Federation);
  • minors between the ages of 14 and 18 also have the right to independently dispose of their earnings, scholarships and other income, and in other cases, participation in the sale and purchase requires the written consent of legal representatives - parents, adoptive parents or guardian, or the concluded agreement may become valid upon their subsequent approval ;
  • persons with limited legal capacity due to the abuse of alcoholic beverages or narcotic drugs independently have the right to conclude only small-kissed household transactions, and others - only with the consent of the trustee.

The possibility of concluding certain types of sales and purchase agreements by citizens (individuals) also depends on whether this individual as individual entrepreneur (for example, in contracts for the supply and retail purchase and sale, a citizen as a seller can only participate if he is registered in the specified capacity in the manner prescribed by law).

Legal entities have the right, as a general rule, to conclude any sale and purchase transactions, unless it is expressly prohibited by their statutory documents.

- the owners of the property they own can freely conclude contracts of purchase and sale both as a seller and a buyer. As for legal entities that own their property on the basis of other property rights (economic management, operational management), their ability to sell this property is limited.

As follows from and. 2 tbsp. 295 of the Civil Code of the Russian Federation, a state or municipal unitary enterprise is not entitled to sell immovable property belonging to it on the basis of the right of economic management without the consent of the owner, although it disposes of the rest of the property independently, except for cases established by law or other legal acts.

The rights of the seller are even more limited for the subjects of the right of operational management - state enterprises and institutions. So, a state-owned enterprise has the right to alienate or otherwise dispose of the property assigned to it (immovable and movable) only with the consent of the owner of this property. However, a state-owned enterprise independently sells its products, unless otherwise established by law or other legal acts (clause 1 of article 297 of the Civil Code of the Russian Federation).

As for the institutions, they are not entitled to alienate or otherwise dispose of the property assigned to them and the property acquired from the funds allocated to them according to the estimate. However, the property acquired by the institution through income-generating activities provided for by the constituent documents, the institution can dispose of independently, including selling it (Article 298 of the Civil Code of the Russian Federation).

In relation to the state (Russian Federation), state and municipalities, it should be noted that their participation in sales contracts is also limited. In particular, the indicated subjects of civil rights cannot participate in such types of contracts as retail kunla-sale, delivery, contracting, energy supply.

The execution of purchase and sale transactions in relation to property located in common ownership. If we are talking about common share ownership, then when selling a share in common property, the rule of preferential purchase applies, that is, other participants in the common share ownership, when selling a share, have the preemptive right to acquire it at the price for which it is sold and on other equal terms (Article 250 of the Civil Code of the Russian Federation).

When one of the participants in the common joint property enters into a transaction for the sale and purchase of property that is the common property, it is assumed that he acts with the consent of its other participants. A transaction for the disposal of common property by one of the co-owners can be recognized by the court as invalid due to the lack of consent of others only at their request and only in cases where it is proved that the other party to the transaction knew or knowingly should have known about the disagreement of other co-owners to the transaction (cl. 3 article 253 of the Civil Code of the Russian Federation).

Contents of the sales contract and its terms

Item Condition

In all types of sale and purchase essential condition is a condition on the subject, which is considered agreed if the contract allows you to determine the name and quantity of the goods (clause 3 of article 455 of the Civil Code of the Russian Federation).

Subject sales contract is a product that can be:

1. things, that is, objects of the material world (both created by man and by nature) that satisfy certain human needs.

In order for a thing to be recognized as a commodity and to be the subject of a sale and purchase agreement, it is necessary to endow it with the quality of turnover, that is, it is necessary that the thing be free to pass from one person to another (clause 1 of article 455, article 129 of the Civil Code of the Russian Federation ). Thus, things with limited circulation can become the subject of a sale and purchase agreement only if the seller has a special permit (license) to sell them, and the buyer has to buy them (poisons, drugs). Items withdrawn from circulation cannot be bought or sold at all.

Moreover, the subject of the sales contract can be both the goods that the seller has at the time of the conclusion of the contract, and the goods that will be created or acquired by the seller in the future, unless otherwise provided by law or follows from the nature of the goods (clause 2 of article 455 );

2. securities and currency values, if the law does not establish special rules for their purchase and sale (clause 2, article 454 of the Civil Code of the Russian Federation);

3. property rights (in particular, to objects of intellectual property), unless otherwise follows from the content or nature of these rights (clause 4 of article 454).

The concept of the subject of the sale and purchase agreement also covers the belonging of the thing being sold, as well as the documents related to it (technical passport, quality certificate, operating instructions, etc.) provided for by law, other legal acts or the contract (clause 2 of article 456 Civil Code of the Russian Federation).

Condition on the quantity of goods

The quantity of goods to be transferred to the buyer is stipulated by the contract of sale in the appropriate units of measurement or in monetary terms. The condition on the quantity of goods can be agreed by establishing in the contract the procedure for determining it.

The quantity can be provided in terms of weight (tons, kilograms, etc.), area (square meters), in pieces, etc. Sometimes the contract indicates only the total amount of purchased goods, and in this case the quantity is determined by dividing the total amount on the cost of one unit of goods.

If the sale and purchase agreement does not allow determining the quantity of the goods to be transferred, it is not considered concluded (clause 2 of article 465 of the Civil Code of the Russian Federation).

In Art. 466 of the Civil Code of the Russian Federation provides for the consequences of violating the condition on the quantity of goods. So, if the seller has transferred, in violation of the contract of sale to the buyer, a smaller amount of goods than specified in the contract, the buyer has the right, unless otherwise provided by the contract, either to demand that the missing amount of goods be transferred, or to refuse the transferred goods and pay for it, and if the goods are paid for - demand the return of the paid amount of money.

If the seller has handed over to the buyer the goods in an amount exceeding that specified in the contract of sale, the buyer is obliged to notify the seller of this. If, within a reasonable time after receiving the buyer's notice, the seller does not dispose of the corresponding part of the goods, the buyer has the right, unless otherwise provided by the contract, to accept the entire goods. Moreover, if the buyer accepts the goods in an amount exceeding that specified in the sales contract, the additionally accepted goods are paid at the price determined for the goods accepted in accordance with the contract, unless a different price is determined by agreement of the parties.

Assortment condition

The goods must be transferred in assortment, that is, in a certain ratio according to types, models, sizes, colors and other characteristics. The range is agreed by the parties in the contract.

If the contract of sale does not define and does not establish the procedure for its determination, but it follows from the essence of the obligation that the goods must be transferred in assortment, the seller has the right to transfer the goods in assortment to the buyer, based on the needs of the buyer, which were known to the seller at the time of the conclusion of the contract , or refuse to fulfill the contract (clause 2 of article 467 of the Civil Code of the Russian Federation).

Article 468 of the Civil Code of the Russian Federation provides for the consequences of violating the conditions on the range of goods. In particular, when the seller transfers goods provided for in the purchase and sale agreement in an assortment that does not comply with the contract, the buyer has the right to refuse to accept and pay for them, and if they have been paid, to demand the return of the amount paid.

If the seller has transferred to the buyer, along with the goods, the assortment of which corresponds to the contract of sale, goods in violation of the conditions on the assortment, the buyer has the right, at his choice:

• accept goods that meet the assortment conditions and refuse the rest of the goods;
• refuse all transferred goods;
• demand to replace goods that do not meet the conditions of the assortment with goods in the assortment provided for by the contract;
• accept all transferred goods.

In case of refusal from goods, the assortment of which does not correspond to the terms of the contract of sale, or the presentation of a demand for replacement of goods that do not meet the condition on the assortment, the buyer also has the right to refuse to pay for these goods, and if they are paid for, demand a refund of the amount paid.

Goods that do not meet the terms of the assortment sale and purchase agreement are considered accepted if the buyer, within a reasonable time after receiving them, does not inform the seller of his rejection of the goods.

If the buyer did not refuse the goods, the assortment of which does not correspond to the contract of sale, he is obliged to pay for them at the price agreed with the seller. In the event that the seller has not taken the necessary measures to agree on the price within a reasonable time, the buyer pays for the goods at the price that, at the time of the conclusion of the contract, under comparable circumstances, was usually charged for similar goods.

Condition on the quality of goods

This condition, although not essential, is often negotiated by the parties when concluding a contract. In paragraph 1 of Art. 469 of the Civil Code of the Russian Federation general view the rule is fixed that the seller is obliged to transfer to the buyer the goods, the quality of which corresponds to the contract of sale. Quality can be determined by specifying in regulatory documents, on GOSTs, standards, etc., applied to certain types of goods.

When selling goods according to a sample or description, the seller is obliged to transfer to the buyer the goods that correspond to them (clause 3 of article 469). The most widespread sale by samples was in retail purchase and sale.

If the quality of the goods has not been agreed in any of the above ways, the general rule provided for in clause 2 of Art. 469: in the absence in the contract of sale of conditions on the quality of the goods, the seller is obliged to transfer to the buyer goods suitable for the purposes for which the goods of this kind are usually used.

If the seller, when concluding the contract, was informed by the buyer about the specific purposes of purchasing the goods, the seller is obliged to transfer to the buyer the goods suitable for use in accordance with these purposes (clause 3 of article 469).

In cases where the law or in accordance with the procedure established by it provides for mandatory requirements for the quality of the goods sold, then the seller performing entrepreneurial activity, is obliged to transfer to the buyer the goods that meet these mandatory requirements. However, by agreement between the seller and the buyer, goods may be transferred that meet increased quality requirements in comparison with the mandatory requirements provided for by law or in the manner established by it (clause 4 of article 469).

The law, other legal acts, mandatory requirements of state standards or the purchase and sale agreement may provide for checking the quality of the goods (testing, analysis, inspection, etc.). In this case, the seller must provide the buyer with evidence of the quality control of the goods.

If the procedure for checking the quality of the goods is not established, then it is carried out in accordance with the customs of business turnover or other commonly applied conditions for checking the goods subject to transfer under the contract of sale (Article 474 of the Civil Code of the Russian Federation).

In Art. 475 of the Civil Code of the Russian Federation establishes the consequences of the transfer of goods not proper quality... In particular, if the defects of the goods were not agreed by the seller, the buyer, to whom the goods of inadequate quality were transferred, have the right, at his choice, to demand from the seller:

• gratuitous elimination of defects in the goods within a reasonable time;
• reimbursement of their expenses for the elimination of defects in the goods.

In the event of a significant violation of the requirements for the quality of the goods (detection of fatal deficiencies, deficiencies that cannot be eliminated without disproportionate costs or time consuming, or are revealed repeatedly, or appear again after their elimination, and other similar deficiencies), the buyer has the right, at his choice:

• refuse to execute the contract of sale and demand the return of the money paid for the goods;
• demand the replacement of goods of inadequate quality with goods that comply with the contract.
• These rules apply unless otherwise provided by law.

It should be borne in mind that the seller is liable for defects in the goods if the buyer proves that the defects in the goods arose before they were handed over to the buyer or for reasons that arose up to that moment.

If the seller has provided a quality guarantee for the goods, the seller is responsible for the defects of the goods, unless he proves that they arose after its transfer to the buyer due to the buyer's violation of the rules for using the goods or their storage, or the actions of third parties or force majeure (Article 476 of the Civil Code of the Russian Federation).

By handing over the goods to the buyer, the seller guarantees him that within a certain period of time the goods will meet the requirements for its quality. This period is called warranty. Warranty periods can be specified in the contract itself. Sometimes they arise from regulations that establish standards and GOSTs for determining the quality of products. In this case, they cannot be changed by agreement of the parties.

If the warranty period is not provided for either by the contract or by special legislation, the rule of a reasonable period applies, during which the quality of the goods must meet the quality requirements at the time of transfer of the goods. In this case, the guarantee of the quality of the goods applies to all its constituent parts (component parts), unless otherwise provided by the contract of sale (Article 470 of the Civil Code of the Russian Federation).

The warranty period begins to run from the moment the goods are transferred to the buyer, however, if the buyer is deprived of the opportunity to use the goods for which the warranty period is established by the contract, due to circumstances depending on the seller, the warranty period does not run until the seller eliminates the relevant circumstances. The same rule applies to cases when the goods could not be used due to the defects found in them, provided the seller was properly notified of these shortcomings (Article 471 of the Civil Code of the Russian Federation).

Distinguish from the warranty period shelf life of goods, which is understood as a period determined by law, other legal acts, mandatory requirements of state standards or other mandatory rules, after which the goods are considered unsuitable for their intended use.

The goods for which the expiration date is set, the seller is obliged to transfer to the buyer in such a way that it can be used for its intended purpose before the expiration date, unless otherwise provided by the contract (Article 472 of the Civil Code of the Russian Federation).

Condition on the completeness of the goods

The contract of sale may stipulate a condition on the completeness of the sold goods, which is understood as a set of separate parts constituting the goods, forming a single whole and used for a general purpose. The concept of completeness applies to technically complex products (equipment, appliances etc.).

The seller is obliged to transfer to the buyer the goods that comply with the terms of the purchase contract for completeness. In other cases, the seller is obliged to transfer to the buyer the goods, the completeness of which is determined by the customs of business turnover or other usually imposed requirements (Article 479 of the Civil Code of the Russian Federation).

Condition for a set of goods

The condition of a set of goods is understood as a certain set of goods agreed by the parties, not conditioned by the unity of their application.

The difference between this condition and the condition on the completeness of goods is that completeness presupposes the general use of the sold goods, while a set of goods is a set of dissimilar goods that are not related to a common purpose, but sold together (for example, a set of food products).

If the contract of sale provides for the seller's obligation to transfer to the buyer a certain set of goods in the set (set of goods), the obligation is considered fulfilled from the moment of transfer of all the goods included in the set. In this case, as a general rule, the seller is obliged to transfer to the buyer all the goods included in the kit at the same time.

In case of transfer of incomplete goods, the buyer in accordance with the provisions of Art. 480 of the Civil Code of the Russian Federation has the right, at its choice, to demand from the seller:

• a commensurate reduction in the purchase price;
• completing the goods within a reasonable time.

However, if the seller has not complied with the buyer's requirements for completing the goods within a reasonable time, the buyer has the right, at his choice:

• demand replacement of incomplete goods with complete ones;
• refuse to fulfill the contract of sale and demand the return of the amount paid.

Condition on containers and packaging

Article 481 of the Civil Code of the Russian Federation provides for a rule according to which the seller is obliged to transfer the goods to the buyer in containers and (or) packaging, regardless of whether the corresponding provision is stipulated in the contract. The only exceptions are goods that, by their nature, do not require packing and (or) packaging (clause 1 of article 481).

Under tare means the products for the placement of the goods.

Packaging, being a broader concept (including packaging), is considered as a means or a set of means to ensure the protection of goods and environment from damage and loss and facilitating the handling of goods.

The parties may indicate in the agreement which container and (or) packaging should be used in the performance of the agreement, or the standards that the container or packaging of the relevant product should meet. But if this condition was not agreed, then in accordance with paragraph 2 of Art. 481 goods must be packed and (or) packed in the usual way for such goods, and in the absence of such - in a way that ensures the safety of goods of this kind under normal conditions of storage and transportation.

Particularly stringent requirements are imposed on a seller engaged in entrepreneurial activity, who, if mandatory requirements for containers and (or) packaging are provided in the manner prescribed by law, is obliged to transfer the goods to the buyer in containers and (or) packaging that meet these mandatory requirements (cl. 3 article 481).

The buyer has the right to demand from the seller to package and (or) pack the goods or replace inappropriate containers and (or) packaging, unless otherwise follows from the contract, the nature of the obligation or the nature of the goods, as well as present claims against him arising from the transfer of goods of inadequate quality (Art . 482 of the Civil Code of the Russian Federation).

Price condition

Unlike the previous legislation, according to which the price was an essential condition of the contract, according to the Civil Code of the Russian Federation, the price is an essential condition only for certain types of sales contracts (sale of real estate, sale of goods in installments). In other cases, if the price is not specified in the contract, the performance of the contract must be paid at a price that, under comparable circumstances, is usually charged for similar goods (clause 3 of article 424 of the Civil Code of the Russian Federation).

The price in the purchase and sale agreement is determined by agreement of the parties, however, in the cases provided by law, it can be fixed or regulated. Fixed prices are prices that are set by competent government bodies and which the parties cannot change (prices for gas, electricity, etc.). Regulated prices are understood as price caps or cap rates set by government agencies.

In cases where the seller, in accordance with the contract, is obliged to transfer other goods to the buyer, the seller has the right to suspend the transfer of these goods until the full payment for all previously personal goods, unless otherwise provided by law, other legal acts or the contract.

In modern conditions, it is quite widespread advance payment for goods (Article 487 of the Civil Code of the Russian Federation). It is carried out within the period stipulated by the contract, and if such a period is not provided for by the contract, within a reasonable time, which in each specific case is determined based on the subject of the contract, the conditions of its execution and other circumstances affecting the actions of the debtor to execute the contract.

In addition, payment for goods sold is also practiced. on credit - the buyer is given a deferred payment after the goods are handed over to him. The moment of payment in this case is determined in the contract, and if this period is not specified, it must be made within a reasonable time (Article 488 of the Civil Code of the Russian Federation).

In accordance with Art. 489 of the Civil Code of the Russian Federation, an agreement on the sale of goods on credit may provide for payment for goods by installments.Such an agreement is considered concluded if, along with other essential terms of the purchase and sale agreement, it contains the price of the goods, the procedure, terms and amounts of payments. If the buyer does not make, within the time period established by the contract, the next payment for the goods sold in installments and transferred to him, the seller has the right to refuse to execute the contract and demand the return of the sold goods, unless otherwise provided by the contract. Exceptions are cases when the amount of payments received from the buyer exceeds half the price of the goods.

The main responsibility of the seller is to hand over the goods. He must transfer the goods:

• free from the rights of third parties;
• in the proper amount;
• proper quality;
• proper assortment;
• proper completeness;
• properly packed and packed;
• in due time.

The main responsibilities of the buyer are acceptance of the goods and payment. As a general rule, he must transfer to the buyer the goods free of any encumbrances, i.e. the rights of third parties to the thing being sold (for example, the rights of the tenant arising from the existence of a lease agreement with the owner of the residential building being sold, since upon transfer of ownership of this house to another person, the lease contract remains in force for the new owner). This rule does not apply in cases where the buyer has agreed to accept the goods encumbered with the rights of third parties (clause 1 of article 460 of the Civil Code of the Russian Federation).

The contract of sale may provide for the obligation of the seller or the buyer to insure the goods (Article 490 of the Civil Code of the Russian Federation). In the event that the party obliged to insure the goods under the contract does not carry out insurance in accordance with the terms of the contract, the other party has the right to insure the goods and demand from the obligated party to reimburse the insurance costs or refuse to fulfill the contract.

Since the seller transfers ownership to the buyer under the contract of sale, the question of when the buyer becomes the owner of the goods becomes important. A number of legal consequences depend on its correct solution, in particular, those related to the distribution of the risk of accidental destruction or damage to the goods, with the creditors of one or another side of the recovery on the goods being sold, the opportunity for the owner to claim his thing from someone else's illegal possession, the possibility for the buyer to really exercise the authority to own, use and dispose of the goods.

As a general rule, the acquirer's right of ownership arises under the contract from the moment the thing is transferred, unless otherwise provided by law or contract. If the agreement is subject to state registration, the ownership right arises from the moment of its registration, provided that otherwise is not established by law (Article 223 of the Civil Code of the Russian Federation). In this case, the transfer is recognized as the handing over of a thing to the acquirer, handing over to the carrier for sending to the acquirer, handing over to the communications organization for sending to the acquirer of things alienated without the obligation of delivery. The transfer of things is also equated with the transfer of a bill of lading or other document of title to things (Article 224 of the Civil Code of the Russian Federation).

The sale and purchase agreement may provide that the ownership of the goods transferred to the buyer remains with the seller until payment for the goods or other circumstances occur (Article 491 of the Civil Code of the Russian Federation). Therefore, the buyer does not have the right to alienate the goods or dispose of them in any other way until the transfer of ownership rights to him, unless otherwise provided by law or contract or follows from the purpose and properties of the goods.

In cases where, within the period stipulated by the contract, the transferred goods will not be paid for or other circumstances do not occur in which the ownership right passes to the buyer, the seller has the right to demand from the buyer to return the goods to him, unless otherwise provided by the contract.

The form of the sales contract. The choice of one form or another is determined by the subject of the contract, the composition of its participants and the price. So, a sales contract can be concluded:

• in oral form, including by performing contentious actions (for example, a retail sale and purchase agreement);
• simple writing (for example, a delivery contract);
• in notarial form (if this form is determined by agreement of the parties).

State registration sales contracts is required in cases provided by law. So, contracts for the purchase and sale of residential premises and enterprises are subject to state registration and are considered concluded from the moment of such registration (clause 2 of Art. 558, 560 of the Civil Code of the Russian Federation).

If one of the parties to the contract for the sale of movable things is a legal entity, then a written form for concluding the contract is required. The same rule applies to citizens if the amount of the contract exceeds ten times the minimum wage established by law. However, if the moments of the conclusion and execution of the contract coincide, then in these cases the contract can be concluded in oral form (for example, in retail sales).

The purchase and sale agreement is the main type of civil obligations used in property turnover. Therefore, it is no coincidence that the provisions governing relations related to the sale and purchase open the second part of the Civil Code of the Russian Federation, devoted to certain types of civil obligations.

A sales contract is a generic term in relation to some other contracts (certain types of sales contracts), the essence of which is that one person undertakes to transfer any property to the ownership of another person, and the latter undertakes to accept this property and pay for it a certain amount of money (price). Contracts recognized as separate types of sales contracts include contracts: retail sales, supply of goods, supply of goods for government needs, contracting, power supply, sale of real estate, sale of an enterprise.

The allocation of the above types of sales and purchase agreement serves primarily the purposes of the simplest and most optimal legal regulation of similar legal relations. Hence the rule, according to which the general provisions of the Civil Code governing the purchase and sale agreement (clause 5 of Article 454 of the Civil Code) are subject to subsidiary application to the said contracts. Regulating these contracts as separate types of sales and purchase agreements, the law could limit itself to only indicating their qualifying characteristics and establishing, in relation to these contracts, some of those subject to priority application special rulestaking into account the specifics of regulated legal relations. There is no single criterion for distinguishing between certain types of sales contracts.

The concept of a sales contract

Under the contract of sale, one party (the seller) undertakes to transfer the thing (goods) to the ownership of the other party (the 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).

Considering the purchase and sale agreement, we will focus on its most general characteristics, such as reciprocity, retribution, and especially the moment of conclusion.

1. Reciprocity. The purchase and sale agreement is a bilateral (mutual) or synallagmatic agreement (Greek synallagma - relationship), from which, as noted in the literature on Roman law, an evenly bilateral obligation arises, because each of the parties is simultaneously and certainly both a creditor and a debtor , and their duties are counter, interrelated and mutually conditioning.

It is a synallagmatic contract, since the fulfillment of the buyer's obligations to pay for the goods is conditional on the seller's fulfillment of his obligations to transfer the goods to the buyer (clause 1 of article 328 of the Civil Code). In other words, the buyer should not fulfill his obligations to pay for the goods until the seller fulfills his obligations to transfer the goods to him.

2. Retribution. A purchase and sale agreement is a reimbursable agreement, reimbursement, in turn, is an obligatory feature of any sale and purchase agreement. And this may not be accidental, for, having agreed today with the statement made by I.B. Novitsky that any bilateral agreement is onerous (but not any onerous contract is mutual in nature), the retaliation of the purchase and sale agreement can be considered a kind of logical "continuation" of its bilateral nature.

It is customary to consider paid contracts that satisfy the property interest of each party entering into it, on the contrary, gratuitous contracts serve the interest of only one party, while the other party here does not have any property benefit.

Retribution pursues a characteristic compensatory goal. "Reimbursable contracts include contracts," writes MI Braginsky, not by chance, "which presuppose that each of the parties receives a certain compensation from its counterparty, for the sake of which the contract is concluded. Gratuitous are contracts that do not imply such compensation."

Retribution, being a mandatory feature of any contract of sale, in relation to its different cases, has a twofold manifestation, depending on the obligation of its contractual establishment and potential definability (the question of the Roman pretiumcertum - the certainty of price). Generally speaking, the condition on the price in any onerous contract (including the sale and purchase agreement), according to the current legislation, as a general rule, is not its essential condition, and therefore any onerous contract (including the purchase and sale agreement) will be considered valid even in the event that the question of the price for the alienated property does not find its direct or indirect contractual settlement.

3. Peculiarities of the moment of conclusion (execution, perfection) as the most general characteristic of any agreement in accordance with the current legislation serves as the basis for differentiating all agreements into three groups. In accordance with this criterion, it is customary to distinguish: a) consensual agreements, the perfection of which is always determined only by the agreement of the parties reached (clause 1 of article 433 of the Civil Code); b) real contracts, the perfection of which is determined by the agreement reached by the parties and the completion of the act of transfer of property (and in some cases, for example, in the real estate rent agreement, also by the act of state registration of the contract) (clause 2 of article 433 of the Civil Code); c) contracts subject to state registration, the perfection of which is always determined by two acts: the agreement reached between the parties and the state registration of the contract (clause 3 of article 433 of the Civil Code). In the overwhelming majority of cases, sales and purchase agreements are of a consensual nature, sometimes they may require state registration, which determines the moment of their conclusion, however, they can never obey the real model. Taking into account the peculiarities of the sales agreement, according to which property is transferred by one party to the other to irrevocable, it is not difficult to imagine cases when the stages of negotiating contractual conditions - the conclusion of the contract - and its execution are inextricably linked or, on the contrary, differ from each other.

In the civil law literature, the overwhelming majority of authors limit themselves to pointing out the consensual nature of the sales contract, while keeping in mind all the ensuing and just formulated consequences. And yet the main problem that exists in connection with the perfection of the sales contract is related to the answer to the question, can it be real in some cases and under certain circumstances? There is no consensus on this issue, and often there is no sufficient certainty and logical completeness in the proposed judgments. And yet it must be admitted that, as a general rule, this question finds its negative resolution, and therefore the majority of authors do not question the consensuality of the sales contract.

Any things, both movable and immovable, individually defined or determined by generic characteristics, are recognized as goods under a sales contract. The general provisions on the sale and purchase of goods also apply to the sale of property rights, unless otherwise follows from the content or nature of these rights. In this sense, it is necessary to recognize that any onerous assignment of property rights (cession) is the sale of these rights, and the rules governing the transfer of the creditor's rights, and in particular the assignment of a claim (Art. 382-390 of the Civil Code), are subject to priority (in relation to the general provisions on the sale and purchase of goods) application.

The peculiarities of the sale and purchase of certain types of goods are established both by the Civil Code itself (for example, Articles 497, 499) and by other laws (for example, the Federal Law of 13.12.94 "On the supply of products for federal state needs") or other legal acts. These features may include, in particular:

the form of the contract (the contract for the sale and purchase of real estate must be in writing - see 131, 163, 550, 560 Civil Code);

the need to register it (when selling an enterprise - Articles 131, 164, 560 of the Civil Code);

the moment of transfer of ownership to the buyer (when selling goods on credit - Art. 488 Civil Code);

the composition of the parties (when selling by tender);

procedural points (for example, the conclusion of an agreement at an auction, at the exchange - see Art. 447-449 of the Civil Code).

The general rule is that the transfer of goods, the transfer of ownership and the payment of the price occur simultaneously. However, the Civil Code knows many exceptions to this rule.

The sale and purchase agreement formalizes export - import operations, and then this agreement is governed not only by national Russian law, but also by international treaties and conventions.

So, the contract of sale is onerous and bilateral, consensual. The purchase and sale agreement, like the transaction, serves as a source of rights and obligations (Article 8 of the Civil Code of the Russian Federation). Mutual rights and obligations of two or more persons form the content of the legal relationship. However, the role of the contract as the basis for the emergence of legal relations is immeasurably higher than that of individual transactions. The vast majority of liabilities in civil law arises exclusively from contracts, and only from sales contracts arise obligations of trade. Equating a contract with a transaction or legal relationship leads to ignoring the entire substantial wealth of contracts, to refusing to use the possibilities of the contract in legal regulation trade entrepreneurship and other areas of activity. The purpose of a sales contract is to transfer ownership of a thing that serves as a good to the buyer. As a general rule, the right of ownership of the acquirer of the thing under the contract arises from the moment of its transfer, unless otherwise provided by law or contract.

• consensual (the transfer of goods to the buyer is the execution of an already concluded contract)
• onerous
• bilateral
• mutual (synallagmatic) (obligations on both sides)

The purpose of a sales contract is to transfer ownership of a thing that serves as a good to the buyer. As a general rule, the acquirer's right of ownership arises from the moment the thing is transferred. If the alienation of a thing is subject to state registration, then the ownership right arises from the moment of registration. The risk of accidental loss or accidental damage to the goods passes to the buyer from the moment the seller transfers the goods to the buyer. If sold while on the move, the risk passes to the buyer from the moment the sales contract is concluded.

Any things, including future ones, are recognized as goods under the contract of sale.

Essential terms of the sales contract:

1. name of product
2. quantity of goods

This is enough for the sale and purchase agreement to be recognized as concluded.

The number of goods should be determined in the contract in the appropriate units of measurement or in monetary terms. The third option - the contract specifies the procedure for determining the quantity of goods.

If the seller transfers less of the goods than indicated in the contract, then the buyer has the right to refuse the transferred goods and pay for them; if you have already paid, then demand a refund and damages.

If the seller transfers more goods than specified in the contract, then the buyer is obliged to notify the seller. If the seller does not dispose of the corresponding part of the goods within a reasonable time, the buyer has the right to accept the entire goods and pay at the price established by the contract.

The law also identifies additional essential conditions for certain types of sales contracts:

1. For purchase and sale on credit with the condition of installments (Article 489 of the Civil Code of the Russian Federation) - goods (as for everyone) + (additionally for this agreement) price, procedure, terms and amounts of payments
2. For the purchase and sale of real estate (clause 1 of Art. 555 of the Civil Code of the Russian Federation) - the goods and the price, and the replenishment norm on the price is not applied (clause 3 of Art. 424: if there is no price, then the price is as much as “under comparable circumstances usually charged for similar goods, works or services ")
3. For the sale and purchase of residential premises (clause 1 of article 558 of the Civil Code of the Russian Federation) - the goods and the value of the object (by virtue of the general rule for real estate - article 555 of the Civil Code of the Russian Federation), as well as a list of persons entitled to use it
4. For retail sale - product and price.

Additional terms of the sales contract:

• a condition on the assortment (goods are subject to transfer in certain proportions by types, models, sizes and other characteristics);
• condition about the quality of the goods. If the contract does not contain a condition on the quality of the goods, then the seller is obliged to transfer to the buyer the goods suitable for the purposes for which such goods are usually used;
• condition on the completeness of the goods. "Completeness of goods" is not equal to "set of goods". Completeness - a set of basic and component products (for example, spare parts), a set - a certain set of goods. If the seller has transferred incomplete goods, then the buyer has the right to demand a commensurate reduction in the price; demand the completion of the goods within a reasonable time. If the seller has not complied with the buyer's requirements within a reasonable time, the buyer has the right to demand replacement of the incomplete product for the complete one; refuse to fulfill the contract and demand the return of the paid amount of money.
• condition on container and packing. If the contract does not contain a clause on packaging and packaging, then the goods must be packed or packed in the usual way for such goods, ensuring the safety of such goods under normal conditions of storage and transportation. Some goods, by their nature, do not require any packing or packaging (coal transported in bulk). If the seller has not fulfilled the obligation to fill and pack the goods, then the buyer has the right to demand that the goods be packed or packaged or to replace the inappropriate packaging. Or the buyer can present to the seller claims arising from the transfer of goods of inadequate quality: for a commensurate reduction in the purchase price; on gratuitous elimination of deficiencies within a reasonable time; on reimbursement of the buyer's expenses incurred in connection with the elimination of defects.

Obligations of the parties to the contract

The main responsibilities of the seller:

1. The seller is obliged to transfer the goods on time (Articles 454, 456 of the Civil Code of the Russian Federation).

The term for the seller to fulfill the obligation to transfer the goods can be specified in the sale and purchase agreement (clause 1 of article 457 of the Civil Code) or it can be determined from the contract, including if it clearly follows from the contract that if the deadline for its performance is violated, the buyer loses interest in the contract (clause 2 of article 457 of the Civil Code).

As a general rule, the moment at which the seller's obligation to hand over the goods is fulfilled depends on whether he is obliged to deliver the goods. If the delivery obligation is stipulated by the contract, the seller is deemed to have fulfilled the obligation at the time of delivery of the goods to the buyer or to the person indicated by him. If the obligation for delivery is not provided for by the contract, then the seller is deemed to have fulfilled the obligation at the time the goods are placed at the disposal of the buyer at the location of the goods.

The goods are considered to be at the disposal of the buyer if the following conditions are met:

• the goods are ready for transfer by the deadline provided for by the contract;
• the goods are in the specified place;
• the buyer is aware of the readiness of the goods for transfer;
• the item is identified.

The seller's responsibility for failure to fulfill the obligation to transfer the goods consists in the emergence of an obligation to return the received cashif the goods are generic things (clause 1 of article 463 of the Civil Code), or in the obligation to transfer the goods, if the goods are individually defined things (clause 2 of article 463 of the Civil Code, taking into account the rules of article 398 of the Civil Code).

2. The seller is obliged to transfer the goods free from the rights and claims of third parties (Article 460 of the Civil Code of the Russian Federation).

Accordingly, the seller is obliged to warn the buyer about the existing encumbrances.

The seller's responsibility for the transfer of goods encumbered with the rights of third parties lies in the appearance of an obligation for him to choose the buyer:

• reduce the price of goods;
• return the goods and the transferred funds after termination of the contract by the buyer.

These rules do not apply if the buyer knew or should have known about the rights of third parties to the goods.

3. The seller is obliged to transfer the goods in the agreed quantity and range (Art. 465, 467 of the Civil Code of the Russian Federation).

The quantity of goods is expressed in units of measurement (pieces, grams, liters, etc.).

The quantitative characteristic of the goods is the assortment - this is a certain ratio of goods by types, models, sizes, colors or other characteristics (Art. 467 of the Civil Code).

The seller's liability for violation of the condition on the quantity of goods is provided for in Art. 466 of the Civil Code of the Russian Federation. So, as a general rule, if the seller has transferred a smaller amount of goods than specified in the contract, he is obliged, at the buyer's choice:

• transfer the missing quantity of goods;
• take back the goods transferred to the buyer with violations of the quantity;
• return the amount paid if the goods were paid for.

If the seller has transferred a larger quantity of goods ("with surpluses"), he becomes obliged to dispose of the surplus goods within a reasonable time after receiving the buyer's notification.

The seller's liability for violation of the conditions on the range of goods is established by Art. 468 of the Civil Code of the Russian Federation and depends on the nature of the violation.

4. The seller is obliged to transfer the goods of proper quality (Article 469 of the Civil Code of the Russian Federation).

The quality of the goods under the sales contract is the compliance of the goods with certain requirements (Art. 469 of the Civil Code).

• First, the quality requirements can be established by contract. However, the parties often do not include any conditions or requirements for the quality of the goods in the sales contract.
• Secondly, the product must meet the requirements that are usually imposed on similar products. In this case, the product must be suitable for the purpose for which such a product is usually used.
• Thirdly, a different rule applies if the buyer, when concluding the contract, notified the seller about the requirements for the quality of the goods necessary for him, about the specific purposes of purchasing the goods. In this case, the seller is obliged to transfer to the buyer a product of quality that meets the stated requirements.
• Fourthly, when selling goods according to the sample and (or) according to the description, the seller is obliged to transfer to the buyer the goods that correspond to the sample and (or) description.
• Fifth, special requirements for the quality of goods are also established for sellers engaged in entrepreneurial activities. They are obliged to transfer to the buyer the goods that meet the mandatory requirements if they are established by law or in the manner prescribed by it.

As a general rule, the goods must meet the specified requirements at the time of transfer to the buyer and within a reasonable time. In the event that the contract provides for the provision of a quality guarantee by the seller, the goods must comply with the considered requirements during the warranty period - a certain time established by the contract (Article 470 of the Civil Code).

The obligation to check the quality of the goods may be provided for by legal acts, mandatory requirements, the contract of sale (clause 1 of article 474 of the Civil Code). If they do not establish a verification procedure, then the verification is carried out in accordance with the generally applicable conditions for the verification of goods. If there is a duty of the seller to check the quality of the goods transferred to the buyer (testing, analysis, inspection, etc.), the seller must provide the buyer with evidence of the quality control of the goods.

The seller is obliged to inform the buyer about all identified shortcomings (Article 475 of the Civil Code). If the seller has not done this, he is responsible for the transfer of goods of inadequate quality. Thus, at the buyer's option, the seller is obliged to:

• discount the goods;
• make repairs within a reasonable time;
• reimburse the buyer's expenses for repairs (clause 1 of article 475 of the Civil Code of the Russian Federation).

These consequences occur if the deficiencies of the product are "normal".

If the defects of the goods are "significant", then the seller is obliged:

• return funds;
• replace the product with a quality one.

The seller is responsible for the defects of the goods if the buyer proves that the defects of the goods arose before it was handed over to the buyer or for reasons that arose before that moment (clause 1 of article 476 of the Civil Code). The seller is not responsible for the defects of the goods if he proves that they arose after the transfer to the buyer, for example, as a result of a violation by the buyer of the rules for the use of the goods or its storage, or the actions of third parties, or force majeure (clause 2 of article 476 of the Civil Code).

5. The seller is obliged to transfer the goods complete and complete (Articles 478, 479 of the Civil Code of the Russian Federation)

A set of goods is a specific set of goods.

Completeness of goods is a set of constituent parts of one product.

The set and completeness of the goods are agreed in the contract. If the contract does not specify the completeness of the goods, the seller is obliged to transfer to the buyer the goods, the completeness of which is determined by the usual requirements.

The seller's obligation is considered fulfilled from the moment of transfer of all the goods included in the set.

Article 480 of the Civil Code established general rules on the seller's liability in case of violation of the obligation to transfer the goods in their complete set and in the set. The seller is obliged, at the buyer's choice: to discount or complete the goods within a reasonable time. If the buyer demanded the completion of the goods, and the seller did not fulfill this requirement within a reasonable time, the seller has the obligation to replace it with a complete product or return the amount of money.

6. The seller is obliged to transfer the goods packed and (or) in the proper container (Art. 481 of the Civil Code of the Russian Federation)

Responsibility for failure to fulfill the obligation to pack and (or) fill the goods is established by Art. 482 Civil Code. If the goods are delivered without packaging, the seller is obliged to package and (or) pack the goods. If the goods are transferred in improper containers and (or) packaging, the seller is obliged to replace them. Or, instead, the seller will be obliged to satisfy the buyer's requirements provided for by Article 475 of the Civil Code.

The main responsibilities of the buyer:

1. The buyer is obliged to accept the goods (Article 484 of the Civil Code of the Russian Federation)

An exception to this rule is possible when the buyer, in a certain situation, has the right not to accept the goods (he can legitimately demand the replacement of the goods or refuse to perform the contract when transferring to him low-quality goods with its significant shortcomings, etc.).

As a general rule, to ensure the acceptance of the goods, the buyer is obliged to take actions that are necessary on his part (clause 2 of article 484 of the Civil Code).

The responsibility of the buyer for failure to fulfill the obligation to accept the goods is manifested in the granting of the seller the right to demand from the buyer to accept the goods or to refuse to perform the contract and demand compensation for losses. For example, it can be the costs of transportation, loading and unloading, storage of goods, etc.

2. The buyer is obliged to pay for the goods (Article 486 of the Civil Code of the Russian Federation)

If the price of the contract of sale is not provided for and cannot be determined on the basis of its terms, the buyer must pay for the goods at a price that, under comparable circumstances, is usually charged for similar goods (clause 3 of article 424 of the Civil Code).

The buyer is obliged to pay for the goods immediately before or after the seller has transferred the goods to him (clause 1 of article 486 of the Civil Code). The term “directly” has been interpreted in various ways, often as “in the shortest technically possible time”. The term of payment for the goods may be stipulated by legal acts and follow from the essence of the obligation.

The responsibility of the buyer for non-fulfillment of the obligation to pay for the transferred goods is to pay interest in accordance with Art. 395 GK.

As a general rule, payment must be made in full. However, the contract of sale may provide for a prepayment (Art. 487 CC), payment on credit (Art. 488 CC), payment by installments (Art. 489 CC).

3. The buyer is obliged to notify the seller of any violation of the terms of the contract of sale

He is obliged to carry out such a notification within the period provided for by legal acts or an agreement. If no such period has been established, the buyer is obliged to notify the seller within a reasonable time. A reasonable time period begins to run after a breach of the relevant contractual condition should have been discovered on the basis of the nature and purpose of the goods.

In case of failure to notify the seller about his improper performance of the contract, the following negative consequences for the buyer occur. The seller has the right to refuse in whole or in part from the satisfaction of the following requirements: transfer the missing quantity of goods; replace goods that do not comply with the terms of the quality or assortment agreement; eliminate product defects; complete goods or replace incomplete goods with complete ones; stock up and (or) pack the goods or replace inappropriate containers and (or) packaging.

The seller has the right to passive behavior if he proves that failure to fulfill this obligation by the buyer has resulted in the impossibility of satisfying his claims or entails for the seller disproportionate costs in comparison with those that he would have incurred if he had been promptly notified of the violation of the contract.

Product suitability and quality rules

Expiration date of a product is a period of time determined by law or by agreement of the parties, after which the product becomes unusable for its intended purpose. The contractual warranty period cannot exceed the expiration date.

The warranty period is interrupted when the goods cannot be used by the buyer due to the seller (for example, due to defects in the goods). The course of the term is resumed after the elimination of such circumstances.

If, during the warranty period, the buyer discovers defects in the transferred product (component product) and the seller, at the buyer's request, replaces it, the newly transferred product (component product) will have a warranty period of the same duration as the replaced one (new product - new warranty period ).

If the seller has violated the condition on the quality of the goods, the buyer has the right to demand:

• a commensurate reduction in the purchase price, or
• gratuitous elimination of defects in the goods within a reasonable time, or
• reimbursement of their expenses for the elimination of deficiencies.

If the seller has committed a material violation of the requirements for the quality of the goods, the buyer is vested with additional rights of his choice:

• refuse to execute the contract and demand a refund, or
• demand the replacement of goods of inadequate quality with goods that meet the condition of the quality of the goods.

If the procedure for the buyer to check the quality of the goods is not determined either by the contract or by the specified rules, but is mandatory, the check of the quality of the goods is carried out in accordance with business customs or other generally applicable conditions of such verification.

The timing of the detection of deficiencies is determined in the Civil Code of the Russian Federation. If it is a legal warranty (when there is neither a warranty period, nor an expiration date), then the defects must be discovered within a reasonable time, but within two years from the date of transfer of the goods to the buyer. If there is a contractual guarantee, then the defects must be discovered within the guarantee period. If an expiration date has been set for a product, then defects must be found within the expiration date. If there is a warranty period (contractual warranty), but it is less than 2 years, and the defects of the goods were discovered after the expiration of the warranty period, but within two years from the date of transfer of the goods, then the seller is responsible if the buyer proves that the defects of the goods arose before the transfer goods to the buyer or for reasons arising up to this point.

If the deadline for detecting defects is over, then the buyer is not entitled to present a corresponding claim against the seller.

Product rules (transfer of ownership, risks, rights of third parties)

Transfer of ownership

According to Art. 223 of the Civil Code of the Russian Federation, as a general rule, the right of ownership of the acquirer of the thing under the contract arises from the moment of its transfer. If you need state registration - from the moment of such registration.

According to Art. 224 of the Civil Code of the Russian Federation, transfer - delivery of a thing to the acquirer, and for obligations without delivery - delivery to the carrier for shipment to the acquirer (delivery to the organization).

For monetary policy, the moment the seller fulfills his obligation to transfer the goods to the buyer is determined by one of three options (Article 458 of the Civil Code of the Russian Federation):

· If there is a clause in the contract about the seller's obligation to deliver the goods - the moment the goods are handed over to the buyer;

· If, in accordance with the contract, the goods must be transferred to the buyer at the location of the goods, - at the moment of placing the goods at the disposal of the buyer at the appropriate place;

· In all other cases - the moment of delivery of the goods to the carrier (or organization of communication).

The date of fulfillment of this obligation must be the date of the corresponding document confirming the acceptance of the goods by the carrier, or the date of the acceptance document.

Risks

The moment of transition from the seller to the buyer of the risk of accidental loss or accidental damage to the goods - the moment when the seller is considered to have fulfilled his obligation to transfer the goods to the buyer, unless otherwise provided

The meaning of the splitting of the moment of transfer of ownership and the risk of death: if the buyer is late in accepting the goods placed at his disposal, the seller is considered to have fulfilled his duty and, therefore, the risk of accidental death passes to the buyer. However, the actual transfer of the goods to the buyer did not take place, therefore, he did not have ownership.

Third party rights

The seller is obliged to transfer the goods to the buyer free of any rights of third parties. An exception is when the buyer agrees to accept the goods encumbered with such rights (clause 1 of article 460 of the Civil Code).

If the goods are transferred with the rights of third parties, a bona fide buyer has the right:

1) demand a reduction in the price of the goods;

2) termination of the sales contract.

However, the contract does not terminate the rights of third parties to the goods:

The transfer of ownership of a product under a sale and purchase agreement is a partial (singular) succession, therefore, by itself, it does not in any way affect the existing encumbrances of this right. In this case, we mean situations when the property being sold has already been pledged, leased, or an easement has been established in relation to this property, etc.

Rules for packaging and packaging of goods

The seller is obliged to transfer the goods packaged and (or) in the proper container (Article 481 of the Civil Code of the Russian Federation).

The purpose of containers and packaging is to ensure the safety of goods during storage and transportation. The goods must be packed and (or) packed in the usual way for such goods; if there is no such method, then in a way that ensures the safety of goods of this kind under normal conditions of storage and transportation. These rules apply if the sales contract does not specify special requirements for containers and packaging.

The seller carrying out entrepreneurial activity is obliged to transfer the goods to the buyer in containers and (or) packaging that meet the mandatory requirements (if they are provided in the manner prescribed by law).

Responsibility for failure to fulfill the obligation to pack and (or) fill the goods is established by Art. 482 of the Civil Code of the Russian Federation. If the goods are delivered without packaging, the seller is obliged to package and (or) pack the goods. If the goods are transferred in improper containers and (or) packaging, the seller is obliged to replace them. Or, instead, the seller will be obliged to satisfy the buyer's requirements provided for by Article 475 of the Civil Code of the Russian Federation.

Concept, legal characteristics
and types of sales contract

Under the contract of sale, one party (the seller) undertakes to transfer the thing (goods) to the ownership of the other party (the 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) ...

The purchase agreement is the most common type of agreement. He is legal formdesigned to serve the sphere of commodity circulation and mediate the movement material values from one person to another.

The sale and purchase agreement is the basis for the emergence of an obligation (relative) legal relationship between the seller and the buyer; moreover, the buyer acquires the right of ownership of the purchased property, that is, the absolute real right.

The contract is under consideration - paid. By acquiring a thing in ownership, the buyer pays the agreed price of the thing to the seller, or, in other words, the seller receives a counter grant.

The bilateral nature of the exchange of goods determines the construction of the sales contract as mutual (bilaterally binding) - rights and obligations arise for both parties: the seller is obliged to transfer a certain thing to the buyer, but has the right to demand payment of the established price for this, while the buyer, in turn, is obliged to pay the price, but has the right to demand the transfer of the sold thing to him.

Sale and purchase agreement - consensual. The rights and obligations of the parties arise already at the moment they reach an agreement on all the essential terms of the contract. However, in cases where for certain types of sales contracts the law provides for their mandatory registration in a certain order and recognizes only a duly executed contract as valid, rights and obligations arise only after the contract is properly drawn up.

Certain types of sales contracts include contracts:

Retail purchase and sale;

Supply of goods;

Supply of goods for state needs;

Enterprise sales.

When concluding and executing a sale and purchase agreement, a fairly wide range of illegal actions can be committed (consumer deception, fraud, sale of goods and products that do not meet the requirements of the safety of life or health of consumers, violation of exclusive rights to a trademark, etc.).

In a number of cases, the sale and purchase transaction itself is insignificant as it contradicts the foundations of morality and law and order (Article 169 of the Civil Code of the Russian Federation), since its subject matter is things withdrawn from civil circulation (drugs, weapons, etc.).

Change and termination of the contract

Change and termination of the contract are possible by agreement of the parties, unless otherwise provided by law or contract. At the request of one of the parties, the contract can be changed or terminated only by a court decision in the following cases:

In case of a significant violation of the contract by the other party;

In other cases stipulated by law or contract.

A violation of the contract by one of the parties is recognized as significant, which entails such damage for the other party that it is largely deprived of what it had the right to count on when concluding the contract (Article 450, Part 1 of the Civil Code of the Russian Federation).

If significant circumstances have changed, from which the parties proceeded when concluding the agreement, this may be the basis for changing or terminating the agreement (Article 451 Part 1 of the Civil Code of the Russian Federation). If the other party is against the amendment or termination of the contract, the dispute is resolved by the court... The court, at the request of the party, determines the consequences of the termination.

Agreement to amend or terminate the contract is made in the same form as the contract, unless otherwise follows from the law, contract or business customs (Article 452 Part 1 of the Civil Code of the Russian Federation). A demand to amend or terminate a contract may be filed by a party in court only after the other party has received a refusal to offer to change or terminate the contract, or if a response is not received within the time period specified in the proposal or established by law or contract, and in its absence, within thirty days.

In case of amendments to the agreement, the obligations of the parties remain in the amended form. Upon termination of the contract, the obligations of the parties terminate.

If the basis for the amendment or termination of the contract was a material breach of the contract by one of the parties, the other party has the right to demand compensation for losses caused by the amendment or termination of contracts.

Elements of a sales contract

The elements of a sale and purchase agreement are: parties (participants), the form and content of the agreement as a set of its terms.

Parties to the sales contract

The parties to the purchase and sale agreement - the seller and the buyer - can be any participants in civil turnover (individuals and legal entities, the state as a whole, state and municipal formations). They are subject to the general requirements of civil legislation on legal capacity and capacity:

A party to the contract may be a capable citizen who has reached the age of majority, i.e. 18 years old;

The law also permits the execution of sales contracts by persons without full legal capacity, in particular:

Children under the age of 14 have the right to independently conclude both small household transactions and transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal, as well as some other types of transactions permitted by law (p. . 2 article 28 of the Civil Code of the Russian Federation);

Minors between the ages of 14 and 18 also have the right to independently dispose of their earnings, scholarships and other income, and in other cases, participation in the sale and purchase requires the written consent of legal representatives - parents, adoptive parents or guardian, or the concluded agreement may become valid upon their subsequent approval ;

Persons with limited legal capacity due to the abuse of alcoholic beverages or narcotic drugs, independently have the right to make only chalk - kit household transactions, and others - only with the consent of the trustee.

The possibility of concluding certain types of sales and purchase agreements by citizens (individuals) also depends on whether the individual is registered as an individual entrepreneur (for example, in supply and retail sales contracts, a citizen can participate as a seller only if it is registered in the specified capacity in the manner prescribed by law).

Legal entities have the right, as a general rule, to conclude any sale and purchase transactions, unless it is expressly prohibited by their statutory documents.

Legal entities - the owners of the property they own can freely conclude contracts of purchase and sale both as a seller and a buyer.
As for legal entities that own their property on the basis of other property rights (economic management, operational management), their ability to sell this property is limited.

The execution of purchase and sale transactions in relation to property located in common ownership. If we are talking about common share ownership, then when selling a share in the common property, the rule of preferential purchase applies, i.e. other participants in the common share ownership, when selling a share, have the preemptive right to acquire it at the price for which it is being sold and on other equal terms (Article 250 of the Civil Code of the Russian Federation).

When one of the participants in the common joint property enters into a transaction for the sale and purchase of property that is the common property, it is assumed that he acts with the consent of its other participants. A transaction for the disposal of common property by one of the co-owners can be recognized by the court as invalid due to the lack of consent of others only at their request and only in cases where it is proved that the other party to the transaction knew or knowingly should have known about the disagreement of other co-owners to the transaction (cl. 3 article 253 of the Civil Code of the Russian Federation).

Item Condition

In all types of sale and purchase essential condition is a condition on the subject, which is considered agreed if the contract allows you to determine the name and quantity of the goods (clause 3 of article 455 of the Civil Code of the Russian Federation).

Subject sales contract is a product that can be:

1. Things, ie, objects of the material world (both created by man and by nature) that satisfy certain human needs.

In order for a thing to be recognized as a commodity and to be the subject of a sale and purchase agreement, it is necessary to endow it with the quality of turnover, that is, it is necessary that the thing be free to pass from one person to another (clause 1 of article 455, article 129 of the Civil Code of the Russian Federation ). Thus, things with limited circulation can become the subject of a sale and purchase agreement only if the seller has a special permit (license) to sell them, and the buyer - to buy them (poisons, drugs). Items withdrawn from circulation cannot be bought or sold at all.

Moreover, the subject of the sales contract can be both the goods that the seller has at the time of the conclusion of the contract, and the goods that will be created or acquired by the seller in the future, unless otherwise provided by law or follows from the nature of the goods (clause 2 of article 455 );

The seller is obliged to transfer to the buyer the goods that comply with the terms of the purchase contract for completeness. In other cases, the seller is obliged to transfer to the buyer the goods, the completeness of which is determined by the customs of business turnover or other usually imposed requirements (Article 479 of the Civil Code of the Russian Federation).

Condition for a set of goods

The condition of a set of goods is understood as a certain set of goods agreed by the parties, not conditioned by the unity of their application.

The difference between this condition and the condition on the completeness of goods is that completeness presupposes the general use of the sold goods, while a set of goods is a set of dissimilar goods that are not related to a common purpose, but sold together (for example, a set of food products).

If the contract of sale provides for the seller's obligation to transfer to the buyer a certain set of goods in the set (set of goods), the obligation is considered fulfilled from the moment of transfer of all the goods included in the set. In this case, as a general rule, the seller is obliged to transfer to the buyer all the goods included in the kit at the same time.

In case of transfer of incomplete goods, the buyer in accordance with the provisions of Art. 480 of the Civil Code of the Russian Federation has the right, at its choice, to demand from the seller:

Commensurate reduction in the purchase price;

Completing the goods within a reasonable time.

However, if the seller has not complied with the buyer's requirements for completing the goods within a reasonable time, the buyer has the right, at his choice:

Require replacement of incomplete goods for complete ones;

Refuse to execute the contract of sale and demand the return of the amount paid.

Condition on containers and packaging

Article 481 of the Civil Code of the Russian Federation provides for a rule according to which the seller is obliged to transfer the goods to the buyer in containers and (or) packaging, regardless of whether the corresponding provision is stipulated in the contract. The only exceptions are goods that, by their nature, do not require packing and (or) packaging (clause 1 of article 481).

Under tare means the products for the placement of the goods.

Packaging, being a broader concept (including packaging), is considered as a means or a set of means that ensure the protection of goods and the environment from damage and loss and facilitate the process of circulation of goods.

The parties may indicate in the agreement which container and (or) packaging should be used in the performance of the agreement, or the standards that the container or packaging of the relevant product should meet. But if this condition was not agreed, then in accordance with paragraph 2 of Art. 481 goods must be packed and (or) packed in the usual way for such goods, and in the absence of such - in a way that ensures the safety of goods of this kind under normal conditions of storage and transportation.

Particularly stringent requirements are imposed on a seller engaged in entrepreneurial activity, who, if mandatory requirements for containers and (or) packaging are provided in the manner prescribed by law, is obliged to transfer the goods to the buyer in containers and (or) packaging that meet these mandatory requirements (cl. 3 article 481).

The buyer has the right to demand from the seller to package and (or) pack the goods or replace inappropriate containers and (or) packaging, unless otherwise follows from the contract, the nature of the obligation or the nature of the goods, as well as present claims against him arising from the transfer of goods of inadequate quality (Art . 482 of the Civil Code of the Russian Federation).

Price condition

Unlike the previous legislation, according to which the price was an essential condition of the contract, according to the Civil Code of the Russian Federation, the price is an essential condition only for certain types of sales contracts (sale of real estate, sale of goods in installments). In other cases, if the price is not specified in the contract, the performance of the contract must be paid at a price that, under comparable circumstances, is usually charged for similar goods (clause 3 of article 424 of the Civil Code of the Russian Federation).

The price in the purchase and sale agreement is determined by agreement of the parties, however, in the cases provided by law, it can be fixed or regulated. Fixed prices mean prices that are set by the competent government authorities and which the parties cannot change (prices for gas, electricity, etc.). Regulated prices are understood as price caps or cap rates set by government agencies.

In cases where the seller, in accordance with the contract, is obliged to transfer other goods to the buyer, the seller has the right to suspend the transfer of these goods until the full payment for all previously personalized goods, unless otherwise provided by law, other legal acts or the contract.

In modern conditions, it is quite widespread advance payment for goods (Article 487 of the Civil Code of the Russian Federation). It is carried out within the period provided for by the contract, and if such a period is not provided for by the contract, within a reasonable time, which in each specific case is determined based on the subject of the contract, the conditions of its execution and other circumstances affecting the actions of the debtor to execute the contract.

In addition, payment for goods sold is also practiced. on credit - the buyer is given a deferred payment after the goods are handed over to him. The moment of payment in this case is determined in the contract, and if this period is not specified, it must be made within a reasonable time (Article 488 of the Civil Code of the Russian Federation).

In accordance with Art. 489 of the Civil Code of the Russian Federation, an agreement on the sale of goods on credit may provide for payment for goods by installments.Such an agreement is considered concluded if, along with other essential terms of the purchase and sale agreement, it contains the price of the goods, the procedure, terms and amounts of payments. If the buyer does not produce within the time period established by the contract for the goods sold in installments and transferred to him, the seller has the right to refuse to fulfill the contract and demand the return of the sold goods, unless otherwise provided by the contract. Exceptions are cases when the amount of payments received from the buyer exceeds half the price of the goods.

The main responsibility of the seller is to hand over the goods. He must transfer the goods:

Free from the rights of third parties;

In the proper amount;

Good quality;

A proper assortment;

Proper completeness;

Properly bagged and packaged;

In due time.

The main responsibilities of the buyer are acceptance of the goods and payment. As a general rule, he must transfer to the buyer the goods free of any encumbrances, i.e. the rights of third parties to the thing being sold (for example, the rights of the tenant arising from the existence of a lease agreement with the owner of the residential building being sold, since upon transfer of ownership of this house to another person, the lease contract remains in force for the new owner). This rule does not apply in cases where the buyer has agreed to accept the goods encumbered with the rights of third parties (clause 1 of article 460 of the Civil Code of the Russian Federation).

The contract of sale may provide for the obligation of the seller or the buyer to insure the goods (Article 490 of the Civil Code of the Russian Federation). In the event that the party obliged to insure the goods under the contract does not carry out insurance in accordance with the terms of the contract, the other party has the right to insure the goods and demand from the obligated party to reimburse the insurance costs or refuse to fulfill the contract.

Since, under the contract of sale, the seller transfers the goods into the ownership of the buyer, the question of when the buyer becomes the owner of the goods becomes important. A number of legal consequences depend on its correct solution, in particular, those related to the distribution of the risk of accidental loss or damage to the goods, with the creditors of one or another side of the recovery on the goods being sold, the opportunity for the owner to claim his thing from someone else's illegal possession, and the possibility for the buyer to really exercise the authority to own, use and dispose of the goods.

As a general rule, the acquirer's right of ownership arises under the contract from the moment the thing is transferred, unless otherwise provided by law or contract. If the agreement is subject to state registration, the ownership right arises from the moment of its registration, provided that otherwise is not established by law (Article 223 of the Civil Code of the Russian Federation). In this case, the transfer is recognized as the handing over of a thing to the acquirer, handing over to the carrier for sending to the acquirer, handing over to the communications organization for sending to the acquirer of things alienated without the obligation of delivery. The transfer of things is also equated with the transfer of a bill of lading or other document of title to things (Article 224 of the Civil Code of the Russian Federation).

The sale and purchase agreement may provide that the ownership of the goods transferred to the buyer remains with the seller until payment for the goods or other circumstances occur (Article 491 of the Civil Code of the Russian Federation). Therefore, the buyer does not have the right to alienate the goods or dispose of them in any other way until the transfer of ownership rights to him, unless otherwise provided by law or contract or follows from the purpose and properties of the goods.

In cases where, within the period stipulated by the contract, the transferred goods will not be paid for or other circumstances do not occur in which the ownership right passes to the buyer, the seller has the right to demand from the buyer to return the goods to him, unless otherwise provided by the contract.

The form of the sales contract. The choice of one form or another is determined by the subject of the contract, the composition of its participants and the price. So, a sales contract can be concluded:

in oral form, including by performing implicit actions (for example, a retail sale and purchase agreement);

simple writing (for example, a delivery contract);

in notarial form (if this form is determined by agreement of the parties).

State registration sales contracts is required in cases provided by law. So, contracts for the purchase and sale of residential premises and enterprises are subject to state registration and are considered concluded from the moment of such registration (clause 2 of Art. 558, 560 of the Civil Code of the Russian Federation).

If one of the parties to the contract for the sale of movable things is a legal entity, then a written form for concluding the contract is required. The same rule applies to citizens if the amount of the contract exceeds ten times the minimum wage established by law. However, if the moments of the conclusion and execution of the contract coincide, then in these cases the contract can be concluded in oral form (for example, in retail sales).

Source: http: // www. ***** / college / pravovedenie / dogovor. html

 

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