The form of the transaction. Concept, types and forms of transactions

The concept, types and forms of transactions are established by the Civil Code of the Russian Federation. Legislation determines that transactions can be oral or written. Written, in turn, are subdivided: a simple written form of the transaction and a form requiring a notarization.

What is a transaction?

The concept and forms of transactions are defined in the Civil Code of Russia. By this means all operations of legal entities or individuals, the result of which is the emergence or termination of duties and rights of citizens, as well as their change. At the same time, the forms of transactions in civil law and legislation are different.

Transactions should be distinguished from administrative acts. If the first cause some rights and duties for persons who commit them, the latter create duties for subordinates regardless of their will.

In transactions there is the will of its participants, which can be internal, that is, that which corresponds to the present intentions of the participant, and external, expressed in words, actions. It is very difficult to determine the true inner content of the will of a person, so it is judged by its external actions. At the same time, much more importance is attached to the inner intentions of man. If their divergence from external manifestations of will be proved, then the contract is quite likely to be declared invalid. So, for example, an elderly person wants to sell his apartment, but because of legal illiteracy or deceit on the part of counterparties, he signs a gift agreement. If the court shows evidence of its actual intentions, the transaction will be canceled.

It is noteworthy that the term "transaction" by society is perceived negatively. But giving this negative meaning to this word does not correspond to its actual legal content.

Transactions by the criterion of legality are different from illegal actions. The latter lead to harm and damage to third parties. And although such illegal actions entail civil rights and obligations, consisting in the need to compensate for damage, they are not created from the transaction. Such rights and obligations arise from the fact of causing harm (tort).

In order for the transaction to be lawful, it is not necessary that it be directly taken into account by law. The main thing is that it does not contradict him and does not violate the established prohibitions.

The main essence of transactions is the will of its participants, therefore it is not allowed to commit them by incapacitated citizens.

Types of transactions

Types and forms of transactions are different. The Civil Code of the Russian Federation provides that the parties to the transaction may have several (more than two), there may be two (bilateral transactions) or, in general, only one (unilateral transaction).

The following characteristics are typical for transactions:

1. Transactions always pursue a certain result from a legal point of view.
2. Accompanied by willful actions of the parties.
3. They are performed by competent persons.
4. Meet all the requirements of the legislation.

It is not necessary to execute a transaction by that person whose rights and obligations are formed or terminated. The law provides that such persons may issue power of attorney for transactions to third parties. In addition, transactions with respect to someone may be carried out on the basis of legislative or other acts. For example, the transaction is made by parents in respect of young children or a guardian in favor of his ward.

A transaction made by one party

One-sided transaction will be recognized as an action for the fulfillment of which enough will of one person. For example, it will be recognized as a will or a waiver of some right, termination of a power of attorney issued earlier. The peculiarity of such transactions is that they, as a rule, affect the rights of the person who performs it. They can not impose any duties on other persons.

At the same time, one-sided deals can still be imposed on third parties, and these persons may not even know about them. When drafting the same will, the future heir may not even suspect it. Very often, such transactions cause obligations in which the persons who commit them become debtors. Such obligations arise when issuing a promissory note.

Such transactions can also terminate the obligations of third parties. For example, when you forgive a debt.

Bilateral and multilateral transactions

Other types of activities aimed at changing the rights and responsibilities in which two or more parties participate are usually called contracts. In practice, such contracts can be called differently: agreements, contracts, and so on. These types of transactions include supply contracts, donations, agreements on the determination of shares in common property and many others.

Some types of bilateral transactions should be distinguished from one-sided ones. In order for a transaction to become a contract, it is necessary not only to obtain the desired result, it is necessary that the actions of all parties are coordinated among themselves. So, for example, at the conclusion of the gift agreement, one party wants to give something to the second participant, and the latter should accept this gift. Here the actions of the first party are accepted and approved by the second party, therefore, the transaction will be two-sided. If, for example, a will is made by one citizen, and after his death another, specified in this document, accepts the inheritance, having received the corresponding certificate from a notary, it will be not a contract, but several successive one-sided transactions, in spite of the fact that the result Property to the heir) corresponded to the will of both parties.

At the same time, the agreement is characterized by two unilateral actions of its participants - a proposal for its conclusion from the first, acceptance of the proposal from the second. Legislation of the Russian Federation, such actions are referred to respectively as an offer and an acceptance.

Agreements can be subdivided into causal and abstract. The differences between these species are as follows. Causal transactions completely depend on the reason for which it was concluded. An example is the case where the buyer makes an advance payment to the store for the purchased goods. If this product is not delivered to the acquirer, then the store has no right to use the money.

In abstract transactions, on the contrary, their reality does not depend on the grounds. Typically, such transactions include actions to transfer securities, their issuance, bank guarantees, bills and the like.

Conclusion of transactions under condition

The condition, if we talk about transactions, can have more than one meaning. Firstly, the rights and obligations of the parties can be determined by the condition. Secondly, the condition is a circumstance from which the rights and duties will arise.

If the transaction is made with an indication of the circumstances that should occur, it will be called conditional. For example, the participants agreed on buying and selling a car if its owner moves to live in another city. The condition in this contract will be the relocation or non-relocation of the owner of the car.

In the transactions under review, the condition must be realized in the future, since in the event that it occurred before the transaction is concluded, it can not affect the agreement of the parties.

The parties themselves determine what conditions to put. This may be the phenomenon of nature, and the behavior of third parties, and the actions of the participants themselves. However, an illegal or illegal action can not be taken as a condition. Another condition can be divided into positive or negative. That is, the following condition can be assigned to a positive one: the contractor will perform the repair of the premises if he can find the necessary material in trade organizations. Negative - the contractor will repair the roof of the house at the required time, if it does not rain.

In addition, conditional deals are also divided into committed under an abolishing or suspensive condition. The first establishes the powers and obligations of the parties not at the time of their conclusion, but at the moment of the stipulated condition. The second, on the contrary, establishes the rights and terms of reference of the participants at the time of the contract, but they are in effect only until the condition comes.

Transactions and their forms

In order for the actions of the parties to acquire their legal significance and cause consequences, they must be exposed in the forms of transactions established by law. If the transaction is negotiated, it will be considered oral. Oral deals include such transactions, for the fulfillment of which there are enough to commit certain actions or just silence. However, this should be either directly established by law or by agreement between the parties.

The legislation of Russia specifies cases when a simple form of transaction or notary must be applied. But for oral transactions, there are no such direct instructions. Therefore, it is considered that the transaction can be carried out verbally, if the law or the agreement of its participants does not provide for it a written form.

The oral form of the transaction involves execution at its very completion. That is, if the parties agreed to effect the purchase and sale of a thing, then the transfer of it, and payment must be made simultaneously. If payment is made by installments or on credit, then you need to conclude a written contract.

Any changes, termination of transactions, as a rule, should be executed in the same form as she does. However, there are exceptions. So, if the loan agreement is drawn up in writing by drawing up a receipt, then its execution can also be executed in writing or verbally by returning the receipt to the debtor. In this case, no additional registration of the termination of rights and obligations is required.

Written forms of transactions

It is necessary to consider in more detail cases when written forms of transactions are used. In civil law, such a form of transaction is established by the legislator in order to more surely confirm the contents of the transaction and in general its availability in the necessary disputable cases. This, in turn, will provide better and more reliable protection of the parties.

Such a form of transaction is required for contracts concluded in the course of entrepreneurial activity, even if one of its participants does not engage in such activities. The amount is also important for determining the necessity of observing the written form of making deals. If a certain price of the contract is exceeded, the transaction must be registered in writing. The Civil Code of the Russian Federation establishes this price in the amount of 10,000 rubles for citizens. However, the legislator established cases when such a form should be observed regardless of the cost.

It is considered a contract concluded and properly executed if its parties exchanged corresponding letters, telephone messages, other telecommunications. To prove that such an agreement is concluded, its participants are required to have all these supporting documents in the originals.

Agreements are encountered when one of its parties sends a certain document to the other party with instructions on the necessary actions. The opposing party may not respond to the document sent to it, immediately proceeding to the action (its execution). For example, shipment of goods or other actions. The written form of the contract will then be observed. Here the direct instruction stipulated by the civil legislation plays its role.

It should be taken into account that for certain contracts the legislator requires that not only a simple written form of the transaction be executed, but also registration on special forms, seals of signatures and the like.

The result of non-compliance with the requirements for transactions

As a rule, in case of non-observance of the established form for the contract, the transaction entails its invalidity. However, there is a double understanding. As a general rule, infringement by the parties of the written form can be a result of that the contract will be recognized as void. But this is only if the participants do not have a dispute that it was actually concluded, as well as its terms. For example, one citizen took 2,000,000 rubles to another without making a contract on paper, and the second does not return money, although he does not refuse that the fact of the loan took place, and the amount is not contested. In this case, the contract will have legal force, and, accordingly, its violation will entail consequences for the guilty party.

Another case, if the debtor refuses the fact that the contract was generally concluded. The outcome of the non-execution of the written form then falls on the creditor. In court, he will not be able to rely on testimony, proving the fact of the loan. But he can provide other written documents that can confirm that the transaction was committed. This can be correspondence, bank payment documents and more.

But if the law directly establishes a rule stating that failure to comply with the written form will invalidate the agreement, then it will be recognized as null and void, even if all participants confirm its conclusion.

The form of a foreign economic transaction, that is, an agreement between physical and legal entities of Russia with counterparties from other countries, must necessarily be a simple written one.

Notary certification

The notarial form of the transaction is established for certain of its types. So, the notarial contract must be certified by the notary. It also applies the principle of invalidity when a form is violated.

The legislator does not resolve the violation by simplifying the established form. That is, if the requirement of notarial certification of the contract is established, it can not be simplified by compiling it in simple written form or in general in oral form. While the complication of the form is entirely permissible. That is, if the legislation allows the oral form of the contract to be accepted at the conclusion of a certain transaction, the parties can decide to formalize it in writing and even to assure the notary. Such actions of the participants will not cause any negative consequences for them.

There are also cases in which one party has already committed certain actions, partially or completely fulfilled its obligations under a contract requiring certification from a notary. If the other party at the same time refrains from this assurance, the judicial authorities may, at the request of the interested party, recognize such agreement as a prisoner. After such a court decision, it is not required to certify a transaction with a notary. At the same time, it should be noted that the period during which such a claim can be submitted to a court should not exceed one year.

State registration

Regulatory legal acts of the Russian Federation introduced certain requirements for certain transactions in the compulsory state registration. The legal consequences of such transactions arise only after this registration in an authorized body.

Registration helps solve several important issues. This, as mentioned, is the acquisition of all legal force. Also, the document issued by the registering authority will reliably confirm the rights of the participant who have transferred to it under the contract. In addition, state registration allows interested persons to familiarize themselves with such transactions. Of course, these people at the legislative level should be granted such rights. This applies to fiscal authorities, law enforcement agencies, other organizations and individuals.

You can find some similarities in the notarization of contracts and in their state registration. At the same time, they differ significantly. So, if notaries certify transactions directly, then the rights arising in their result are subject to state registration. Although in the usual sense it is still said about the registration of transactions. Also, if the contract requires a notarial certification, this does not mean that it needs to be registered. And vice versa.

One of the most important objects of registration in an authorized body are real estate transactions. But there are other rights, occurrences, changes, the termination of which must be registered. For example, the emergence of ownership of vehicles.

Knowledge of the basic nuances of civil legislation that defines the concept, types and forms of transactions will not only allow the parties to correctly formulate their intentions and wills, but also will insure against unforeseen unpleasant moments.