General characteristics of the sale. General characteristics of the contract of sale. Annuity agreement and its types

General definition contract of sale, is contained in paragraph 1 of Art. 454 Civil Code Civil Code Russian Federation. Part 2. M. 1996 .. Under the contract of sale, the party (seller) undertakes to transfer the thing (goods) to the ownership of the other party (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 regulations, regulating the rights and obligations of the parties under 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 that are imperative in nature are aimed mainly at protecting the interests of the parties to the contract (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 when the content of the relevant is prescribed by law

The contract of sale is consensual. The consensuality of the contract of sale means that the contract is considered concluded, and the rights and obligations of the parties arise at the moment 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. / Rev. Ed. E.A. Sukhanov. M .: BEK, 1996. P. 64 ..

The contract of sale is paid and bilateral. It is a synallagmatic contract, since the fulfillment of obligations by the buyer to pay for the goods is conditioned by the fulfillment by the seller of his obligations to transfer the goods to the buyer (clause 1 of article 328 of the Civil Code) of the Civil Code of the Russian Federation. Part 1. M. 1995. In other words, the buyer must 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 that the buyer pays for the goods in advance, the seller becomes the subject of counter performance, who may not fulfill the obligation to transfer the goods until the agreed amount of the advance payment is received from the buyer.

The subject of the contract of sale is the goods (thing, property), regarding which the parties have reached an agreement. The subject of the contract is the only essential condition of the contract of sale, since the contract is considered concluded and the terms of the goods are agreed 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 term of its transfer, the quality of the goods are not essential terms of the contract. Only for certain types contracts of sale, the law establishes additional essential conditions. The introduction of additional essential conditions in the contract of sale allows you to allocate certain types of this contract (retail sale, supply, sale of real estate, etc.) Vitryansky VV. Purchase and sale (chapter 30). In the book: GKRF. Part 2. Text. Comments. Alphabetical subject index. M., 1996 P.251..

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

If by the time the contract of sale was concluded, individually defined items were lost by the seller as a result of their death, transfer of ownership of them to third parties, etc., the question of the fate of the contract of sale should be decided depending on whether known to the buyer. If the buyer, when entering into a contract of sale, knew or should have known that the thing that was the object of sale was lost by the seller, then there is a contract that must be recognized as not concluded on the basis of 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 the individually defined thing serving as goods 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 fraud (Article 179 of the Civil Code). Such a transaction is voidable, therefore, the buyer, instead of seeking recognition of it as invalid, has the right, based on the fact that the contract is valid, to demand from the seller compensation for losses and the application of other measures of responsibility in connection with the failure of the latter to fulfill obligations arising from the contract of sale .

The purpose of the contract of sale is to transfer the ownership of the thing that serves as a commodity to the buyer. As a general rule, the right of ownership of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or the contract. In cases where the alienation of property is subject to state registration, the right of 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) is not among the entities that have the right of ownership 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 property right.

In relations for the sale and purchase of state registration, 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) is subject to state registration ). In cases of the sale of enterprises and residential premises, the concluded sale and purchase agreements are also subject to state registration.

As a general rule, the alienation of property by the owner to other persons entails the termination of the property right of the latter (paragraph 1 of article 235 of the Civil Code). With regard to the purchase and sale, the seller's ownership of property ceases from the moment the thing that serves as a commodity is transferred to the buyer (in relevant 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 right of ownership of the person who is the owner of the goods, as well as the seller's powers to dispose of the goods. The exception is cases when the parties enter into an agreement with the condition that the seller retains the right of ownership of the goods transferred to the buyer for the seller until payment for the goods or the occurrence of other certain circumstances. In such a situation, the seller, remaining the owner of the goods, if the buyer fails to pay for the goods within the prescribed period or if other circumstances provided for by the contract do not occur, under which the ownership right passes to the buyer, has the right to demand from the buyer to return the goods transferred to him (Article 491 of the Civil Code).

The risk of accidental loss or accidental damage to the goods also passes to the buyer 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 a bill of lading or other documents of title to the goods), the risk of accidental loss or damage to the goods passes to the buyer from the moment the contract of sale is concluded, unless otherwise provided by the contract itself or the customs of business (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 a commodity must be its owner or possess another limited real right, from which the seller's authority to dispose of property that is a commodity follows.

In cases stipulated by law or contract, the authority to dispose of property may be granted to a person who is not the subject of the right of ownership or limited real right to this property. In particular, when concluding a contract of sale by holding a public auction, the seller signing the contract is recognized as the organizer of the auction (clause 5 of article 448 of the Civil Code); when property is sold 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 enters into a contract of sale, acting on his own behalf on behalf of and at the expense of the principal on the basis of an agency agreement (clause 1, 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 respect of the property transferred to him under the trust management agreement (clause 3 of article 1012 of the Civil Code).

Public legal entities may act as sellers when selling state or municipal property that is not assigned to legal entities formed by them.

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

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

Among the sales contracts, there are contracts under which sellers and buyers, selling or purchasing goods, act within the framework of their business activities. Legal relations arising from such agreements are subject to certain special rules relating to obligations associated with the implementation of entrepreneurial activities.

At the same time, this circumstance does not give grounds for singling out the so-called entrepreneurial contract of sale and purchase as an independent type of contract of sale Civil law of Russia. Part two. Law of Obligations: course of lectures / Ed. Ed. HE. Sadikov. M. 1997, p. 11 sales. On the contrary, the general provisions on sale and purchase (§ 1 of Chapter 30 of the Civil Code) apply to all sales contracts, regardless of whether their parties carry out entrepreneurial activity.

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

A number of scientists in their works reduce the subject of the contract of sale 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 to be simplified and unreasonable. For example, O.S. Ioffe speaks of the material objects of the contract of sale, 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 volitional objects - the individual will of the seller and the buyer to the extent that it is subject to the legislation governing their relationship by Ioffe O.S. Obligation law. M., 1975. S. 211. According to M.I. Braginsky, the legal relations arising from the contract of sale have two types of objects: the actions of the obligated person and the thing that, as a result of such an action, must be transferred Braginsky M.I., Vitryansky V.V. Contract law. General provisions. M., 1997. S. 224.

The subject of the contract is an essential condition of the contract of sale. At the same time, the condition of the contract of sale on the goods 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 contract of sale, which determine its subject matter. Simply, the absence in the text of the contract of other clauses regulating the actions of the seller to transfer the goods to the buyer, as well as the acceptance by the latter and payment for the accepted goods, is compensated by dispositive rules that determine the procedure and timing for performing these actions.

So, in cases where the seller's obligation to deliver the goods or transfer them 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 of delivery of the goods to the carrier or communication organization for delivery to the buyer, unless otherwise provided by the contract. 2 article 458 of the Civil Code).

The buyer is obliged to take actions that, in accordance with the usual 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 immediately before or after its transfer (clause 1 of article 486 GK).

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

When buying and selling goods by installments or when buying and selling real estate, the price of the contract is prerequisite, otherwise this element is not significant. The price in the contract of sale is free, contractual, that is, agreed by the parties themselves. But in a number of cases it is limited by law: in public contracts of retail purchase and sale and energy 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 contract of sale is not its essential condition, however, for delivery or sale with installment payment, the term takes on special significance.

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 fulfilled 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 written form required for contracts involving legal entities, for contracts between citizens, if their price is ten or more times higher than the minimum wage.

Thus, the contract of sale is consensual, bilateral and paid. The parties under the sale and purchase agreement are citizens, legal entities and, in some cases, the state - the Russian Federation, subjects of the Russian Federation, municipalities. In order to recognize a 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 relating to the subject of the contract can be determined in accordance with the dispositive norms contained in the Civil Code.

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

Parties to the contract of sale

The parties to the contract of sale - the seller and the buyer - can be any participants in civil circulation (individuals and legal entities, the state as a whole, state and municipal entities). They are covered General requirements 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 who do not have full legal capacity, in particular:
- children under the age of 14 have the right to independently make both small everyday transactions and transactions on 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, article 28 of the Civil Code of the Russian Federation);
- minors aged 14 to 18 also have the right to independently manage 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 contract may become valid upon their subsequent approval ;
- persons limited in legal capacity due to the abuse of alcoholic beverages or narcotic drugs, independently have the right to make only small household transactions, and others - only with the consent of the trustee.

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

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

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

As follows from i. 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 under 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-owned enterprises and institutions. Thus, a state-owned enterprise has the right to alienate or otherwise dispose of the property assigned to it (real 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, article 297 of the Civil Code of the Russian Federation).

As for institutions, they are not entitled to alienate or otherwise dispose of the property assigned to them and property acquired at the expense of funds allocated to them according to the estimate. However, the property acquired by the institution through income-generating activities and 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).

With regard to the state (Russian Federation), state and municipal entities, it should be noted that their participation in sales contracts is also limited. In particular, these subjects of civil rights cannot participate in such types of contracts as retail sales, supply, contracting, and energy supply.

It regulates in a special way the performance of purchase and sale transactions in respect of property located in common ownership. If we are talking about common shared ownership, then when selling a share in common property, the preemptive purchase rule applies, i.e. other participants in common shared ownership, when selling a share, have the pre-emptive 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 common joint ownership concludes a transaction for the sale of property that is common property, it is assumed that he acts with the consent of its other participants. Deal on order common property one of the co-owners may be declared invalid by the court due to the lack of consent of the others only at their request and only in cases where it is proved that the other party to the transaction knew or obviously should have known about the disagreement of the other co-owners to the transaction (paragraph 3 of article 253 of the Civil Code RF).

The content of the contract of sale and its conditions

Condition about the subject

In all types of sale 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 a contract of sale is a commodity, which can be:

1. things, i.e., objects of the material world (both created by man and nature), satisfying certain human needs.

In order for a thing to be recognized as a commodity and could be the subject of a contract of sale, it is necessary to endow it with the quality of negotiability, i.e. it is necessary that the thing be able to freely transfer from one person to another (clause 1, article 455, article 129 of the Civil Code of the Russian Federation ). Thus, things restricted in circulation can become the subject of a contract of sale only if the seller has a special permit (license) for their sale, and the buyer - for their purchase (poisons, narcotic substances). Items withdrawn from circulation cannot be bought or sold at all.

Moreover, the subject of the contract of sale can be both goods that the seller has at the time of the conclusion of the contract, and 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 (paragraph 2 of article 455 );

2. securities and currency values, unless the law establishes special rules for their sale and purchase (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 contract of sale also covers the accessories of the item being sold, as well as 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).

Quantity condition

The quantity of goods to be transferred to the buyer is provided for by the contract of sale in the relevant units of measurement or in monetary terms. The condition on the quantity of goods can be agreed upon by establishing in the contract the procedure for its determination.

The quantity may be specified in terms of weight (tons, kilograms, etc.), area (square meters), pieces, etc. Sometimes the contract specifies only the total amount of the goods purchased, in which case the quantity is determined by dividing the total amount on the cost of one unit of goods.

If the contract of sale does not allow determining the quantity of goods to be transferred, it is not considered concluded (clause 2, 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 transferred to the buyer in violation of the contract of sale a smaller quantity of goods than specified by the contract, the buyer has the right, unless otherwise provided by the contract, either to demand the transfer of the missing quantity of goods, or to refuse the transferred goods and from paying for it, and if the goods are paid for - demand a refund of the amount paid.

If the seller has transferred the goods to the buyer in an amount exceeding that specified in the contract of sale, the buyer is obliged to notify the seller about this. If, within a reasonable time after receiving the buyer's message, the seller does not dispose of the relevant part of the goods, the buyer shall have the right, unless otherwise provided by the contract, to accept the entire goods. Moreover, if the buyer accepts goods in an amount exceeding that specified in the sale and purchase agreement, 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, i.e. in a certain ratio but by 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 establish the procedure for its determination, but it follows from the nature of the obligation that the goods must be transferred in assortment, the seller has the right to transfer goods to the buyer in the assortment, based on the needs of the buyer, which were known to the seller at the time of 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 condition on the assortment of goods. In particular, when the seller transfers goods provided for by the sales contract 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 are paid, to demand the return of the amount paid.

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

accept goods that meet the assortment condition and refuse other goods;
refuse all transferred goods;
demand the replacement of goods that do not comply with the assortment condition with goods in the assortment provided for by the contract;
accept all transferred goods.

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

Goods that do not comply with the terms of the contract of sale on the assortment are considered accepted if the buyer does not notify the seller about his refusal of the goods within a reasonable time after receiving them.

If the buyer has not refused the goods, the assortment of which does not correspond to the contract of sale, he is obliged to pay for them at a price agreed with the seller. In the event that the seller fails to take the necessary measures to agree on a 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.

Goods quality condition

This condition, although not essential, is often negotiated by the parties at the conclusion of the contract. In paragraph 1 of Art. 469 of the Civil Code of the Russian Federation in 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 normative 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 goods that correspond to them (paragraph 3 of article 469). Sales by samples are most widely used in retail sales.

If the quality of the goods was not specified by any of the above methods, the general rule provided for in paragraph 2 of Art. 469: if there are no conditions in the contract of sale regarding the quality of the goods, the seller is obliged to transfer to the buyer goods suitable for the purposes for which goods of this kind are usually used.

If the seller, at the conclusion of the contract, was informed by the buyer of the specific purposes of acquiring the goods, the seller is obliged to transfer to the buyer the goods suitable for use in accordance with these purposes (paragraph 3 of article 469).

In cases where the law or in the manner prescribed by it provides for mandatory requirements for the quality of the goods sold, the seller who 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 prescribed by it (clause 4 of article 469).

Law, other legal acts, mandatory requirements state standards or a contract of sale may provide for a quality check of the goods (testing, analysis, inspection, etc.). In this case, the seller must provide the buyer with evidence of the verification of the quality 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 to be transferred 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 good quality. In particular, if the shortcomings of the goods were not specified by the seller, the buyer, to whom the goods of inadequate quality were transferred, has 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 flaws, flaws that cannot be eliminated without disproportionate costs or time, or are detected repeatedly, or appear again after their elimination, and other similar flaws), the buyer has the right to choose:

refuse to fulfill the contract of sale and demand the return of the amount of 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 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.

If the seller provides a quality guarantee for the goods, the seller is responsible for the defects of the goods, unless he proves that they arose after it was transferred to the buyer as a result of 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 transferring 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 set in the contract itself. Sometimes they follow 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 comply with the quality requirements at the time of transfer of the goods. At the same time, the guarantee of the quality of the goods applies to all its constituent parts (component products), unless otherwise provided by the sales contract (Article 470 of the Civil Code of the Russian Federation).

The warranty period begins to run from the moment the goods are handed over 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 where the goods could not be used due to defects found in it, provided that the seller was properly notified of these defects (Article 471 of the Civil Code of the Russian Federation).

From warranty period should be distinguished product expiration date, 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).

The condition of the completeness of the goods

The contract of sale may stipulate a condition on the completeness of the goods being sold, which is understood as the totality of the individual parts that make up the goods, forming a single whole and used for a general purpose. The concept of completeness is applied 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 contract of sale on 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 commonly required requirements (Article 479 of the Civil Code of the Russian Federation).

Condition of a set of goods

A condition on a set of goods is understood as a certain set of goods agreed upon by the parties, not determined by the unity of their application.

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

If the contract of sale provides for the obligation of the seller 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 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 set at the same time.

In the event of the 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:

proportional reduction of the purchase price;
completion of 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 the replacement of an incomplete product with a complete one;
refuse to fulfill the contract of sale and demand the return of the amount paid.

Condition on tare 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, article 481).

Under container refers to articles for the placement of goods.

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

The parties may indicate in the contract which container and (or) packaging should be used in the performance of the contract, or the standards that the container or packaging of the relevant goods must meet. But if this condition was not agreed upon, then in accordance with paragraph 2 of Art. 481 goods must be packaged 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 strict requirements are imposed on a seller engaged in entrepreneurial activity, who, in the event that mandatory requirements for containers and (or) packaging are provided in accordance with the procedure established by law, is obliged to transfer the goods to the buyer in containers and (or) packaging that meet these mandatory requirements. 3 article 481).

The buyer has the right to demand from the seller to pack and (or) pack the goods or replace improper containers and (or) packaging, unless otherwise follows from the contract, the essence of the obligation or the nature of the goods, as well as to 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 sale and purchase agreement (sale of real estate, sale of goods by installments). In other cases, if the price is not specified in the contract, the performance of the contract must be paid at the price that, under comparable circumstances, is usually charged for similar goods (clause 3, article 424 of the Civil Code of the Russian Federation).

The price in the contract of sale is determined by agreement of the parties, however, in cases provided for by law, it may be fixed or adjustable. Fixed prices are prices that are set by the competent authorities. government bodies and which the parties cannot change (prices for gas, electricity, etc.). With regard to regulated prices, they mean price ceilings or ceiling tariffs 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 full payment for all previously transferred goods, unless otherwise provided by law, other legal acts or the contract.

In modern conditions, it has become 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 on the basis of the subject matter of the contract, the conditions for its execution and other circumstances affecting the actions of the debtor in the performance of the contract.

In addition, payment for goods sold is also practiced. on credit - the buyer is granted a deferred payment after the transfer of goods to him. The moment of payment in this case is determined in the contract, and if this period is not defined, 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 in installments. Such an agreement is considered concluded if, along with other essential terms of the purchase and sale agreement, it specifies the price of the goods, the procedure, terms and amounts of payments. If the buyer does not make the next payment for the goods sold by installments and transferred to him within the period established by the contract, 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. The exception is 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 transfer the goods. He must deliver the goods:

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

The main responsibilities of the buyer are the acceptance of the goods and their payment. As a general rule, he must transfer to the buyer the goods, free from 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 agreement remains valid for the new owner). This rule does not apply in cases where the buyer agreed to accept the goods encumbered with the rights of third parties (clause 1, article 460 of the Civil Code of the Russian Federation).

The contract of sale may provide for the obligation of the seller or buyer to insure the goods (Article 490 of the Civil Code of the Russian Federation). In the event that the party obliged under the contract to insure the goods 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 that the obligated party reimburse the insurance costs or refuse to perform the contract.

Since under the contract of sale the seller transfers ownership to the buyer, the question of from what moment the buyer becomes the owner of the goods becomes important. A number of legal consequences depend on its correct decision, in particular, those related to the distribution of the risk of accidental loss or damage to the goods, the levy of execution by creditors of one or another party on the goods being sold, the opportunity for the owner to reclaim his thing from someone else's illegal possession, the possibility for the buyer to actually exercise the authority to own, use and dispose of the goods.

As a general rule, the right of ownership of the acquirer under the contract arises from the moment of transfer of the thing, unless otherwise provided by law or the contract. If the contract is subject to state registration, the right of ownership 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 shall be recognized as handing over the thing to the acquirer, handing it over to the carrier for sending to the acquirer, handing over to the communication organization for sending to the acquirer 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 contract of sale may provide that the ownership of the goods transferred to the buyer is retained by the seller until payment for the goods or the occurrence of other circumstances (Article 491 of the Civil Code of the Russian Federation). Therefore, the buyer is not entitled to alienate the goods or dispose of them in any other way before the transfer of the right of ownership to him, unless otherwise provided by law or the contract, or does not follow from the purpose and properties of the goods.

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

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

in oral form, including through the performance of implicit actions (for example, a retail sale and purchase agreement);
simple writing(for example, a supply contract);
in notarial form(if this form is determined by agreement of the parties).

State registration contracts of sale is necessary in cases provided for by law. Thus, contracts for the sale and purchase of residential premises and enterprises are subject to state registration and are considered concluded from the moment of such registration (clause 2 of article 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 of the conclusion of the contract is required. The same rule applies to citizens if the amount of the contract exceeds ten minimum wages established by law. However, if the moments of 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 contract of sale is the main type of civil law 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, dedicated to certain types of civil obligations.

The contract of sale is a generic concept in relation to some other contracts (certain types of contract of sale), the essence of which is that one person undertakes to transfer any property into the ownership of another person, and the latter undertakes to accept this property and pay for it a certain amount of money (price). Among the contracts recognized as separate types of sale and purchase contracts are contracts: retail sale, supply of goods, supply of goods for state needs, contracting, energy supply, sale of real estate, sale of an enterprise.

The allocation of these types of contract of sale serves primarily the purposes of the most simple and optimal legal regulation of similar legal relations. Hence the rule according to which the general provisions of the Civil Code governing the contract of sale (clause 5 of article 454 of the Civil Code) are subject to subsidiary application to these contracts. Regulating the named contracts as separate types of the contract of sale, the law could be limited only to indicating their qualifying features and establishing, in relation to these contracts, some subject to priority application. special rules taking into account the specifics of regulated legal relations. There is no single criterion for distinguishing between certain types of contract of sale.

The concept of a contract of sale

Under the contract of sale, one party (seller) undertakes to transfer the thing (goods) to the ownership of the other party (buyer), and the buyer undertakes to accept this goods and pay a certain amount of money (price) for it (paragraph 1 of article 454 of the Civil Code).

Considering the contract of sale, we will dwell on its most general characteristics, such as: reciprocity, retribution, features of the moment of conclusion.

1. Reciprocity. The contract of sale is a bilateral (mutual) or synallagmatic contract (Greek synallagma - relationship), from which, as noted in the literature on Roman law, a uniformly bilateral obligation arises, because each of the parties is both a creditor and a debtor at the same time and their responsibilities are mutual, interconnected and mutually conditional.

It is a synallagmatic contract, since the fulfillment of obligations by the buyer to pay for the goods is conditioned by the fulfillment by the seller of his obligations to transfer the goods to the buyer (paragraph 1 of article 328 of the Civil Code). In other words, the buyer must not fulfill his obligations to pay for the goods until the seller fulfills his obligations to transfer the goods to him.

2. Compensation. The contract of sale is a contract for compensation, compensation, in turn, is an obligatory feature of any contract of sale. And this may not be accidental, because, having agreed today with the statement made more than half a century ago by I.B. Novitsky that every bilateral agreement is paid (but not every paid contract is mutual), the compensatory nature of the contract of sale can be considered a kind of logical "continuation" of its bilateral nature.

It is customary to consider 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,” M. I. Braginsky writes not by chance, “which involve the receipt by each of the parties from its counterparty of a certain compensation, for the sake of which the contract is concluded. Contracts that do not imply such compensation are gratuitous.”

Compensation, 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 determinability (the question of the Roman pretiumcertum - the certainty of price). Generally speaking, the price clause in any onerous contract (including a contract of sale) according to current legislation as a general rule, it is not its essential condition, and therefore any contract for compensation (including the contract of sale) will be considered valid even if the question of the price for the alienated property does not find its direct or indirect contractual settlement.

3. Features of the moment of conclusion (commission, perfection), as the most general characteristic of any contract, in accordance with the current legislation, acts as the basis for differentiating all contracts into three groups. In accordance with this criterion, it is customary to single out: a) consensual agreements, the perfection of which is always determined by the agreement of the parties reached alone (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 act of transferring property (and in some cases, for example, in a real estate rental agreement, also by an 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: an agreement reached by the parties and state registration of the contract (clause 3 of article 433 of the Civil Code). In the vast majority of cases, sales contracts are consensual in nature, sometimes they may require state registration, which determines the moment of their conclusion, but they can never obey a real model. on an irrevocable basis, it is easy to imagine cases where the stages of agreeing on contractual conditions - the conclusion of a contract - and its execution are inextricably linked or, on the contrary, differ from each other.

In civil literature, the vast majority of authors limit themselves to pointing out the consensual nature of the contract of sale, 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 contract of sale is related to the answer to the question, can it, in some cases and under certain circumstances, be real? Regarding this issue, there is no unity of opinion, and often there is no sufficient certainty and logical completeness in the proposed judgments. However, it cannot be denied 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.

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

Features of the sale and purchase of certain types of goods are established both by the Civil Code itself (for example, Articles 497, 499) and other laws (for example, federal law dated 12/13/94 "On the supply of products for federal state needs") or other legal acts. These features may relate in particular to:

the form of the contract (the contract for the sale of real estate must be in writing - see 131, 163, 550, 560 of the 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 - Article 488 of the Civil Code);

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

procedural aspects (for example, the conclusion of an agreement at an auction, on the stock exchange - see Articles 447-449 of the Civil Code).

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

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

So, the contract of sale is paid and bilateral, consensual. The contract of sale, like a 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 obligations civil law arises exclusively from contracts, and only from contracts of sale arise obligations of trade turnover. Equating a contract with a transaction or a legal relationship leads to ignoring the entire richness of the content of contracts, to refusing to use the possibilities of the contract in legal regulation commercial business and other areas of activity. The purpose of the contract of sale is to transfer the ownership of the thing that serves as a commodity to the buyer. As a general rule, the right of ownership of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or the contract.

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

The purpose of the contract of sale is to transfer the ownership of the thing that serves as a commodity to the buyer. As a general rule, the right of ownership of the acquirer arises from the moment the thing is transferred. If the alienation of a thing is subject to state registration, then the right of ownership 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 en route, the risk passes to the buyer from the moment the contract of sale is concluded.

Goods under a contract of sale are any things, including future ones.

Essential terms of the contract of sale:

Name of product
quantity of goods

This is sufficient to recognize the contract of sale concluded.

The quantity of goods must 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 a smaller quantity of goods than specified in the contract, then the buyer has the right to refuse the transferred goods and their payment; If you have already paid, then demand a refund and compensation for damages.

If the seller transfers more goods than specified in the contract, the buyer is obliged to notify the seller about this. 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 highlights additional essential conditions for certain types of sales contracts:

For purchase and sale on credit with an installment agreement (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
For the purchase and sale of real estate (clause 1, article 555 of the Civil Code of the Russian Federation) - a product and a price, and the complementary price rule does not apply (clause 3, article 424: if there is no price, then the price is as much as “under comparable circumstances usually charged for similar goods, works or services”)
For the purchase and sale of residential premises (clause 1 of article 558 of the Civil Code of the Russian Federation) - the goods and value of the object (by virtue of the general norm for real estate - article 555 of the Civil Code of the Russian Federation), as well as a list of persons entitled to use it
For sale and purchase at retail - goods and price.

Additional terms of the contract of sale:

a condition on the assortment (goods are subject to transfer in a certain ratio by type, model, size and other features);
product quality condition. If the contract does not contain a condition on the quality of the goods, then the seller is obliged to transfer to the buyer goods suitable for the purposes for which such goods are usually used;
the condition of the completeness of the goods. "Complete goods" is not equal to "a set of goods". Completeness - a set of basic and component products (for example, spare parts), a set - a specific set of goods. If the seller handed over incomplete goods, the buyer has the right to demand a proportional reduction in the price; demand that the goods be completed 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 that the incomplete goods be replaced with a complete one; refuse to perform the contract and demand a refund of the amount paid.
terms and conditions for tare and packaging. If the contract does not contain a provision on tare and packaging, then the goods must be packaged or packaged in the usual way for such goods, ensuring the safety of goods of this kind under normal conditions of storage and transportation. Some goods, by their nature, require neither boxing nor packaging (bulk coal). If the seller has not fulfilled the obligation to pack and pack the goods, the buyer has the right to demand that the goods be packed or packed or that the improper packaging be replaced. Or the buyer may present to the seller claims arising from the transfer of goods of inadequate quality: for a commensurate reduction in the purchase price; about the 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 deadline for the seller to fulfill the obligation to transfer the goods may be specified in the contract of sale (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, Article 457 of the Civil Code).

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

the goods are ready for transfer by the time stipulated by the contract;
the goods are located in the specified place;
the buyer is aware of the readiness of the goods for transfer;
item has been identified.

The seller's liability for failure to fulfill the obligation to transfer the goods consists in the appearance of an obligation for him to return the received cash, if 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, subject to 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 responsibility of the seller for the transfer of goods encumbered with the rights of third parties lies in the appearance of an obligation for him at the choice of the buyer:

reduce the price of the goods;
return the goods and the transferred funds after the 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 assortment (Articles 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 (Article 467 of the Civil Code).

The responsibility of the seller 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 choice of the buyer:

transfer the missing quantity of goods;
to accept back the goods transferred to the buyer with violations of the quantity;
return the amount of money paid, if the goods are paid for.

If the seller has transferred a larger quantity of goods ("with surplus"), he has an obligation to dispose of the excess goods within a reasonable time after receiving the buyer's message.

The responsibility of the seller for violation of the conditions on the assortment 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 contract of sale is the compliance of the goods with certain requirements (Article 469 of the Civil Code).

First, quality requirements can be established by contract. However, often the parties do not include any conditions or requirements for the quality of the goods in the contract of sale.
Secondly, the product must meet the requirements that are usually imposed on similar products. In this case, the goods must be suitable for the purposes for which goods of this kind are usually used.
Thirdly, a different rule applies if the buyer, at the conclusion of the contract, informed the seller about the requirements he needs for the quality of the goods, about the specific purposes of acquiring the goods. In this case, the seller is obliged to transfer to the buyer the goods of a 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.
Fifthly, for sellers engaged in entrepreneurial activities, special requirements for the quality of goods are also established. 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 comply with the specified requirements at the time of transfer to the buyer and within a reasonable time. In the case when the contract provides for the provision by the seller of a quality guarantee, the goods must comply with the considered requirements within the warranty period - a certain time established by the contract (Article 470 of the Civil Code).

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

The seller is obliged to inform the buyer about all identified shortcomings (Article 475 of the Civil Code). If the seller did not do this, he is responsible for the transfer of goods of inadequate quality. So, at the choice of the buyer, the seller must:

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

These consequences occur if the defects of the goods are “ordinary”.

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

return money;
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 transferred to the buyer or for reasons that arose before that moment (paragraph 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 the buyer's violation of the rules for using the goods or their storage, or the actions of third parties, or force majeure (paragraph 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 determine the completeness of the goods, the seller is obliged to transfer to the buyer the goods, the completeness of which is determined by the usually imposed requirements.

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

Article 480 of the Civil Code established general rules about the responsibility of the seller in case of violation of the obligation to transfer the goods in completeness and as a set. The seller is obliged, at the option of the buyer, to discount or complete the goods within a reasonable time. If the buyer demanded that the goods be completed, and the seller did not fulfill this requirement within a reasonable time, the seller has an obligation to replace the goods with a complete set or return the amount of money.

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

Responsibility for failure to fulfill the obligation to pack and (or) pack the goods is established by Art. 482 GK. If the goods are transferred without containers, the seller is obliged to pack 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 requirements of the buyer, provided for in 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 (may legitimately demand the replacement of the goods or refuse to perform the contract when transferring low-quality goods with its significant shortcomings, etc.).

As a general rule, in order to ensure the acceptance of the goods, the buyer is obliged to take actions that are necessary on his part (paragraph 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 granting the seller the right to require the buyer to accept the goods or to refuse to perform the contract and claim damages. For example, these may 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 is not provided for by the contract of sale 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 transfers the goods to him (paragraph 1 of article 486 of the Civil Code). The term "immediately" has been interpreted in various ways, often as "as soon as technically possible". The term for payment for goods may be provided for by legal acts and follow from the nature of the obligation.

The responsibility of the buyer for failure to fulfill 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 in full. However, the contract of sale may provide for advance payment (Article 487 of the Civil Code), payment on credit (Article 488 of the Civil Code), installment payment (Article 489 of the Civil Code).

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 notification within the period stipulated by legal acts or the contract. If such a period is not fixed, the buyer must notify the seller within a reasonable time. A reasonable time period begins to run after a breach of the relevant contract clause should have been discovered, based on the nature and purpose of the goods.

If the seller fails to notify improper performance they contract the following negative consequences for the buyer. The seller has the right to refuse, in whole or in part, to satisfy the following requirements: to transfer the missing quantity of goods; replace goods that do not comply with the terms of the contract on quality or assortment; eliminate the defects of the goods; complete the goods or replace the incomplete goods with the complete ones; pack and (or) pack the goods or replace improper packaging and (or) packaging.

The right to passive behavior arises for the seller if he proves that the failure to fulfill this obligation by the buyer caused the impossibility of satisfying his requirements or entails disproportionate costs for the seller compared to those that he would have incurred if he had been notified of the breach of contract in a timely manner.

Goods suitability and quality rules

Goods expiration date - a period of time determined by law or by agreement of the parties, after which the goods become unsuitable for their intended use. The contractual warranty period cannot exceed the expiration date.

The warranty period is interrupted when the product cannot be used by the buyer due to the seller (for example, due to defects in the product). The time limit shall be 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 request of the buyer, replaces it, the warranty period for the newly transferred product (component product) is established for the same duration as for the replaced one (new product - new warranty period ).

If the seller 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:

withdraw from 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 said rules, but is mandatory, the quality check of the goods is carried out in accordance with the customs of business or other usually applicable conditions for such a check.

The terms for detecting deficiencies are defined in the Civil Code of the Russian Federation. If it is a legal guarantee (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, the defects must be discovered within the guarantee period. If a product has an expiration date, the defects must be discovered within the expiration date. If there is a warranty period (contractual guarantee), 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 liable if the buyer proves that the defects of the goods arose before the transfer goods to the buyer or for reasons that have arisen up to this point.

If the period for detecting defects has expired, then the buyer is not entitled to present a corresponding claim against the seller.

Rules about the product (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 a thing under a contract arises from the moment it is transferred. 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 the PrEP, 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 condition in the contract on the obligation of the seller to deliver the goods - by the moment of delivery of the goods to the buyer;

if, in accordance with the contract, the goods must be transferred to the buyer at the location of the goods, - by the moment the goods are placed 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 communication organization).

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

Risks

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

The significance of the split between the moment of transfer of ownership and the risk of loss: if the buyer has delayed the acceptance of the goods placed at his disposal, the seller is considered to have fulfilled his obligation and, therefore, the risk of accidental loss passes to the buyer. However, the actual transfer of the goods to the buyer did not take place, so the right of ownership did not arise for him.

Rights of third parties

The seller is obliged to transfer the goods to the buyer free from any rights of third parties. An exception is when there is a buyer's consent to accept the goods encumbered with such rights (paragraph 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 to:

1) demand a reduction in the price of goods;

2) termination of the contract of sale.

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

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

Rules on tare and packaging of goods

The seller is obliged to transfer the goods packaged and (or) in proper packaging (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 packaged 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 contract of sale does not specify special requirements for containers and packaging.

The seller engaged in 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 for in the manner prescribed by law).

Responsibility for failure to fulfill the obligation to pack and (or) pack the goods is established by Art. 482 of the Civil Code of the Russian Federation. If the goods are transferred without containers, the seller is obliged to pack 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 requirements of the buyer, provided for in Article 475 of the Civil Code of the Russian Federation.

Concept, legal characteristics
and types of sales contract

Under a sales contract, one party (the seller) undertakes to transfer the thing (goods) into the ownership of the other party (the buyer), and the buyer undertakes to accept this goods and pay a certain amount of money (price) for it (clause 1, article 454 of the Civil Code of the Russian Federation) .

The contract of sale is the most common type of contract. He is legal form designed to serve the sphere of commodity circulation and mediate the movement material assets from one person to another.

The contract of sale is the basis for the emergence of an obligatory (relative) legal relationship between the seller and the buyer; moreover, the buyer acquires the right of ownership of the purchased property, i.e., an absolute right in rem.

Contract under consideration compensated. By acquiring a thing for ownership, the buyer pays the seller the stipulated price of the thing, or, in other words, the seller receives a counter provision of property.

The bilateral nature of the exchange of goods determines the construction of the contract of sale 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.

The contract of sale is 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 execution in a certain order and recognizes as valid only a properly executed contract, rights and obligations arise only after the contract has been properly executed.

Certain types of sales contracts include:

Retail sale and purchase;

Deliveries 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 for the safety of life or health of consumers, violation of exclusive rights to a trademark, etc.).

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

Change and termination of the contract

Amendment 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 the event of a material breach of the contract by the other party;

In other cases provided by law or contract.

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

If the essential circumstances from which the parties proceeded when concluding the contract have changed, this may be the basis for changing or terminating the contract (Article 451 Part 1 of the Civil Code of the Russian Federation). If the other party is against changing or terminating the contract, the dispute is resolved by the court. The court, at the request of the party, determines the consequences of 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 customs of business (Article 452 Part 1 of the Civil Code of the Russian Federation). A demand to amend or terminate the contract may be filed by a party to the court only after receiving a refusal from the other party to the proposal to change or terminate the contract or failure to receive a response within the time period specified in the proposal or established by law, or by the contract, and in its absence - within thirty days.

When the contract is amended, the obligations of the parties remain unchanged. Upon termination of the contract, the obligations of the parties cease.

If the basis for changing or terminating 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 change or termination of the contracts.

Elements of a sales contract

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

Parties to the contract of sale

The parties to the contract of sale - the seller and the buyer - can be any participants in civil circulation (individuals and legal entities, the state as a whole, state and municipal entities). They are subject to the general requirements of civil law 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 allows the execution of contracts of sale and persons who do not have full legal capacity, in particular:

Children under the age of 14 have the right to independently make both small everyday transactions and transactions at 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. 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 manage their earnings, scholarships and other incomes, 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 contract may become valid upon their subsequent approval ;

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

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

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

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

It regulates in a special way the performance of purchase and sale transactions in respect of property located in common ownership. If we are talking about common shared ownership, then when selling a share in common property, the preemptive purchase rule applies, i.e., other participants in common shared ownership, when selling a share, have the pre-emptive 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 common joint ownership concludes a transaction for the sale of property that is common property, it is assumed that he acts with the consent of its other participants. A transaction on the disposal of common property by one of the co-owners may be declared invalid by the court on the grounds of the absence of the consent of the others only at their request and only in cases where it is proved that the other party to the transaction knew or obviously should have known about the disagreement of the other co-owners to conclude the transaction. 3 article 253 of the Civil Code of the Russian Federation).

Condition about the subject

Subject a contract of sale is a commodity, which can be:

1. Things, i.e., objects of the material world (both created by man and by nature), satisfying certain human needs.

Condition of a set of goods

A condition on a set of goods is understood as a certain set of goods agreed upon by the parties, not determined by the unity of their application.

Proportionate reduction of the purchase price;

Completion of 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:

Request the replacement of an incomplete product with a complete one;

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

Condition on tare and packaging

Under container refers to articles for the placement of goods.

Package, 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 contract which container and (or) packaging should be used in the performance of the contract, or the standards that the container or packaging of the relevant goods must meet. But if this condition was not agreed upon, then in accordance with paragraph 2 of Art. 481 goods must be packaged and (or) packaged 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.

Price condition

The price in the contract of sale is determined by agreement of the parties, however, in cases provided for by law, it may be fixed or adjustable. Fixed prices are prices that are set by the competent state authorities and which the parties cannot change (prices for gas, electricity, etc.). With regard to regulated prices, they mean price ceilings or ceiling tariffs 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 full payment for all previously personal goods, unless otherwise provided by law, other legal acts or the contract.

In modern conditions, it has become 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 agreement, and if such a period is not provided for by the agreement - within a reasonable time, which in each specific case is determined on the basis of the subject matter of the agreement, the conditions for its execution and other circumstances affecting the actions of the debtor in the performance of the agreement.

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 in installments. Such an agreement is considered concluded if, along with other essential terms of the purchase and sale agreement, it specifies the price of the goods, the procedure, terms and amounts of payments. If the buyer fails to produce within the period established by the contract for the goods sold by 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. The exception is 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 transfer the goods. He must deliver the goods:

Free from the rights of third parties;

in the right amount;

Proper quality;

Proper assortment;

Proper completeness;

Properly bagged and packaged;

In due time.

Since under the contract of sale the seller transfers the ownership of the goods to the buyer, the question of from what moment the buyer becomes the owner of the goods becomes important. A number of legal consequences depend on its correct decision, in particular, those related to the distribution of the risk of accidental loss or damage to the goods, the levy of execution by creditors of one or another party on the goods being sold, the opportunity for the owner to reclaim his thing from someone else's illegal possession, the possibility for the buyer to actually exercise the authority to own, use and dispose of the goods.

in oral form, including through the performance of conclusive actions (for example, a retail sale and purchase agreement);

simple writing(for example, a supply contract);

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

A source: http://www. *****/college/legal/dogovor. html

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