Types of purchase and sale agreements briefly. Sale and purchase agreement: definition, characteristics, parties, subject, form, types. Terms of the purchase and sale agreement

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

A purchase and sale agreement is a generic concept in relation to some other agreements (certain types of purchase and sale agreements), 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). The number of agreements recognized as separate types of purchase and sale agreements includes agreements: retail purchase and sale, supply of goods, supply of goods for government needs, contracting, energy supply, sale of real estate, sale of an enterprise.

The identification of these types of purchase and sale agreement serves primarily the purposes of the simplest and most optimal legal regulation of similar legal relations. Hence the rule according to which these agreements are subject to subsidiary application general provisions Civil Codes governing the purchase and sale agreement (clause 5 of Article 454 of the Civil Code). By regulating the named agreements as individual species purchase and sale agreements, the law could limit itself only to indicating their qualifying features and establishing in relation to these agreements some special rules subject to priority application, taking into account the specifics of the regulated legal relations. There is no single criterion for distinguishing between individual types of purchase and sale agreements.

The concept of a purchase and sale agreement

Under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it (clause 1 of Article 454 of the Civil Code).

Considering the purchase and sale agreement, we will dwell on its most general characteristics, such as: reciprocity, compensation, features of the moment of conclusion.

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

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

2. Remuneration. A purchase and sale agreement is a compensated agreement; consideration, in turn, is a mandatory feature of any purchase and sale agreement. And this may not be accidental, because, agreeing today with the statement made more than half a century ago by I.B. Novitsky, that every bilateral agreement is compensated (but not every compensation agreement is mutual in nature), the consideration of the purchase and sale agreement can be considered as a kind of logical “continuation” of its bilateral nature.

Compensatory contracts are considered to be those that satisfy the property interests of each party entering into it; on the contrary, gratuitous contracts serve the interests of only one party, while the other party does not have any property benefit.

Remuneration has a characteristic compensatory purpose. “Compensatory contracts include contracts,” it is no coincidence that M.I. Braginsky writes, “which require each party to receive from its counterparty a certain compensation for the sake of which the contract is concluded. Contracts that do not imply such compensation are gratuitous.”

Remuneration, being a mandatory feature of any purchase and sale agreement, in relation to its various cases has a dual manifestation depending on the mandatory nature of its contractual establishment and potential determinability (the question of the Roman pretiumcertum - price certainty). Generally speaking, the condition on the price in any paid contract (including a purchase and sale agreement) in accordance with the current legislation on general rule is not its essential condition, and therefore any paid agreement (including a purchase and sale agreement) will be considered valid even if the issue of the price for the alienated property does not find its direct or indirect contractual settlement.

3. Features of the moment of conclusion (commitment, perfection) as the most general characteristics of any contract, according to current legislation, serves as the basis for differentiating all contracts into three groups. In accordance with this criterion, it is customary to distinguish: a) consensual contracts, the perfection of which is always determined solely by the reached agreement of the parties (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 execution of the act of transfer of property (and in some cases, for example, in a real estate rental agreement, also by the act state registration agreement) (clause 2 of article 433 of the Civil Code); c) contracts subject to state registration, the perfection of which is always determined by two acts: the agreement reached by the parties and the state registration of the contract (clause 3 of Article 433 of the Civil Code). In the vast majority of cases, purchase and sale agreements are consensual in nature, sometimes they may require state registration, which determines the moment of their conclusion, but they can never obey the real model. Taking into account the features of the purchase and sale agreement, according to which property is transferred by one party to the other on irrevocable basis, it is easy to imagine cases when the stages of agreeing on contractual terms - concluding a contract - and its execution are inextricably linked or, on the contrary, differ from each other.

In the civil law literature, the vast majority of authors limit themselves to pointing out the consensual nature of the purchase and sale agreement, bearing in mind all the consequences that arise from this and just formulated. And yet, the main problem that exists in connection with the perfection of a sales contract is related to the answer to the question: can it be real in some cases and under certain circumstances? Regarding this issue, there is no unity of opinion, and often there is no sufficient certainty and logical completeness in the proposed judgments. And yet, one cannot help but admit that, as a general rule, this issue finds its negative resolution, and therefore the majority of authors do not question the consensual nature of the sale and purchase agreement.

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

The specifics of the purchase and sale of certain types of goods are established both by the Civil Code itself (for example, Articles 497, 499), and by other laws (for example, the Federal Law of December 13, 1994 “On the supply of products for federal state needs”) or other legal acts. These features may concern, in particular:

forms of the agreement (a real estate purchase and sale agreement must be in writing - see 131, 163, 550, 560 of the Civil Code);

the need for its registration (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);

composition of the parties (in case of sale by competition);

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

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

The purchase and sale 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 purchase and sale agreement is compensated and bilateral, consensual. A purchase and sale agreement, like a transaction, serves as a source of rights and obligations (Article 8 of the Civil Code of the Russian Federation). The 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 in civil law arise exclusively from contracts, and only from sales contracts do trade obligations arise. Equating a contract with a transaction or legal relationship leads to ignoring the entire substantive richness of contracts, to a refusal to use the possibilities of the contract in the legal regulation of trade entrepreneurship and other areas of activity. The purpose of a contract of sale is to transfer ownership of the thing serving as a commodity to the buyer. As a general rule, the ownership right of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or contract.

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We tell you how to buy and sell legally

Today you buy bread or water, tomorrow you sell winter jacket, and the day after tomorrow you are looking for a bike for summer walks.

Anna Chebotareva

All this happens thanks to the purchase and sale agreement.

What will you learn

In this article we will talk about the legal side of the issue - that is, what is purchase and sale from the point of view of the law. There will be practical examples, but the purpose of the article is to give you a general idea of this concept.

What is a purchase and sale agreement

This is an agreement between two parties that one of them - the seller - will transfer to the other party - the buyer - a certain thing when he receives payment for it. The agreement may be written, but in some cases it may also be oral.

A sales contract is needed to confirm the transfer of ownership of the goods from the seller to the buyer. The contract will also be useful if you were sold a low-quality product and you want to exchange it or get your money back.

If your product is from a special category, for example a car, then you will be asked to show the purchase and sale agreement when registering the car with the traffic police to make sure that you bought it honestly. Without registration, you will not be able to legally use the vehicle.

Parties to the agreement

The Civil Code imposes minimum requirements on the parties to a purchase and sale agreement. The main requirement: the seller must be the owner of the goods or have other rights that allow him to transfer the goods to the buyer.

A purchase and sale agreement can be concluded by citizens among themselves, a citizen with a company, or two companies. The only difference is the amount of liability and whether the law “On Protection of Consumer Rights” will work. We will talk about the general rules for concluding a purchase and sale agreement and the rules that protect citizens.

Sales and purchase agreement form

The law does not require you to enter into a written purchase agreement. This means that even when you buy a kilogram of cucumbers at the market without signing any contracts, the purchase and sale still occurs, and your relationship with the seller is still subject to general rules.

There are three exceptional cases when the Civil Code insists that you draw up a sales contract in writing:

two citizens of the Russian Federation buy/sell something more expensive than 10 thousand rubles - art. 161 Civil Code of the Russian Federation;
your counterparty - entity- art. 161 Civil Code of the Russian Federation;
you are selling or buying real estate - an apartment, a room, a plot of land, a country house, etc. - Art. 550 Civil Code of the Russian Federation.

If you do not draw up and sign the agreement in the first two cases, it will still be valid. But if something happens, you will not be able to call witnesses in court to confirm the existence of this agreement.

If you are selling or buying real estate, the purchase and sale agreement must be concluded in writing. Otherwise, the contract will be declared invalid, and the apartment or house will not be your property.

There is no need to register the contract itself now even when buying an apartment. Registration is only required when there is a change of ownership. In most cases, a notary is not required for a purchase and sale agreement, but there are exceptions.

A notary is needed if you are selling or buying property in the following situations:

this is a share in an apartment or house - Part 1 of Art. 42 Federal Law “On State Registration of Real Estate”;
this is the apartment of your child or person over whom you have custody - Part 2 of Art. 54 Federal Law “On State Registration of Real Estate”;
This is an apartment, but you are not selling it just like that, but on the condition that you will be paid funds for your maintenance for life - rent - Art. 584 Civil Code of the Russian Federation.

The main and only thing that the seller and buyer must agree on in advance is the product. If they have not decided what exactly and in what quantity will be the subject of the transaction, then there is no agreement. The goods must be exactly the same and in the quantity that the parties agreed on. The product must also be of high quality.

Exactly the one we agreed on. If Galya promised to sell Christina Christian Louboutin shoes made of genuine leather, size 37, shade nude 6248 and always with the inscription Pigalle 120 patent kauf, then Gucci shoes of size 38 and without the inscription will not work.

Range. If Christina was expecting several different pairs of shoes, Galya must sell them exactly according to Christina's expectations. If Galya failed Christina's expectations, the latter may refuse to accept the goods altogether or ask for replacement of unsuitable shoes. This gives her the right

Quantity. If there are several product units, anyone should be able to count them. You cannot agree on the quantity of goods in unclear measurement systems.

Quality. Either you negotiate the quality of the product separately, or the seller gives you a product suitable for the purposes that you stated when concluding the contract. For example, if Christina and Galya agreed on shoes, Galya cannot sell Christina shoes with a broken heel that are impossible to walk in.

The seller may try to sell a low-quality product by warning the buyer in advance. For example, say: “Galya, the heel of these shoes is broken off, I’ll give you ten thousand for it.” So it is possible.

But if the seller did not warn, and the buyer did not notice the catch, then, according to Art. 475 of the Civil Code of the Russian Federation, the buyer can:

demand a price reduction in proportion to the shortage of goods;
demand that the product be repaired, if possible;
repair the product at your own expense, and then come to the seller with a receipt for the repair and demand a full refund.

If the product is so bad that it will definitely not be possible to use it for its intended purpose, then the buyer can either demand the money back or replace the product with a similar one, but of higher quality.

What else needs to be agreed upon?

Ask how many owners the product has, that is, whether the goods have any other owners other than the seller, and whether any restrictions or encumbrances are imposed on this product. Although, if the truth about their quantity is revealed later, the civil code allows you to refuse the contract completely or demand a price reduction. But we recommend checking the encumbrances immediately.

Check documents. When you receive the goods, be sure to check that all instructions, technical data sheets and quality certificates are in place. It is the seller’s responsibility to transfer them to you along with the goods, even if he sells you used shoes (Clause 2 of Article 456 of the Civil Code of the Russian Federation).

If you do not need these documents, you can directly tell the seller about this. But if problems arise with the product in the future, it will be more difficult to exchange it or return money without a technical passport and certificates than with them.

Agree on who delivers the goods and how. The moment of transfer of the risk of accidental loss or damage to the goods depends on this.

Accidental loss of goods - a situation when the goods were destroyed by someone, but not the seller or the buyer

Suppose Masha decided to buy a vacuum cleaner. She went to the site large store household appliances and chose a Dyson manual vacuum cleaner for 19,990 rubles. The site offered Masha two delivery options: pickup from retail store and delivery by courier. When will the vacuum cleaner legally belong to Masha?

Pickup. If Masha chooses self-pickup, then formally she is responsible for the vacuum cleaner from the moment she receives an SMS or letter from the seller that the product can be picked up from the store. In fact, Masha will become the owner of the vacuum cleaner from the moment she receives it at the delivery counter. The store delivers the vacuum cleaner to the counter, and Masha sends a notification. From this moment it is considered that the store has fulfilled its obligations. The longer Masha waits to receive the goods, the more she risks that something will happen to her vacuum cleaner through no fault of the store.

Courier delivery. If Masha chose delivery by courier, then the store will fulfill its duties only when the courier delivers the goods personally to Masha at her home, work or other meeting place. If the courier scratches the vacuum cleaner on the way or drops it into a puddle, the store is responsible for the damage.

The Vacuum Cleaner falls under the responsibility of the Machine only after she has picked it up. If Masha then drops and breaks the vacuum cleaner, then it is her own fault.

Third party delivery. The store sent the vacuum cleaner for delivery third party organization, whose services Masha decided to use. In this case, the store ceases to be responsible for damage from the moment it delivers the goods to a representative of the third-party courier service.

If something happens to the product, Masha takes a risk, but she can make a claim courier service. The Moscow City Court, in its ruling in case No. 33-3461 on the recovery of the cost of undelivered goods from the seller, recognized that the seller ceases to be responsible for the goods when he gives them to the courier. The goods left the store, intact and fully assembled - the seller no longer bears the risk of accidental death. If the product is lost on the road, for example, as a result of an accident, the store is not obliged to reimburse you for its cost.

How to pay for goods

You can pay for the goods in any way you like, but you need to discuss the payment method in advance.

The buyer usually transfers money immediately before or after the goods are delivered to him. If you did not agree on an installment plan, and then suddenly want it, the seller can legally refuse you and demand you pay the entire amount at once.

If you refuse to pay when agreed upon, or take the goods but are in no hurry to pay, this is a failure to fulfill your obligations under the sales contract. For this, the seller has the right to demand from you the entire amount of the goods with interest.

It works the other way around: if you have a clause in the contract about deferred or installment payment, then by default the seller cannot force you to pay ahead of schedule. But there may be special conditions in the contract that will allow the seller to do this, for example, if you delay the next installment payment.

How to draw up a purchase and sale agreement

There is no strict mandatory form of a purchase and sale agreement; you can draw it up in free form. Remember all the points that we described in the article: what product, how much of it, for how much, when, who and how it is delivered.

You can draw up a purchase and sale agreement at home, in a cafe, on the street, in a park - anywhere. You can go to a notary, but no one forces you to do this, not even the law.

If something has changed in your relationship with the counterparty, you can either conclude new agreement- that is, re-register it, or sign it additional agreement to the old one.

We have drawn up a sample sales contract using shoes as an example.

How to register a purchase and sale agreement

The purchase and sale agreement does not need to be registered.

But if you buy a car or an apartment, the state requires you to register the transfer of ownership of the goods. To do this, it is imperative to draw up an agreement in writing in triplicate - for the buyer, the seller and the registering authority.

How to terminate a purchase and sale agreement

Method 1. The other party is not against termination, and you simply agree that the sale and purchase will not take place. It didn’t happen - and it didn’t happen, so it’s possible.

Method 2. The other party is against termination, but the circumstances under which you entered into the contract have changed significantly. In this case, the other party may demand compensation for losses, since it was the one who counted on the fulfillment of the contract. For example, a person ordered expensive sports skis, but while they were being delivered, he injured a tendon, and the doctors said that he could not ski. Then the skis are cancelled, but the delivery costs will most likely have to be compensated.

Due to a significant change in circumstances, you can terminate any contract, not just sales.

Method 3. If you are a seller and your buyer has not accepted the goods, then you can demand termination of the contract at any time. And if the buyer accepted the goods, but does not pay for it, then feel free to demand both termination and return of the goods.

Method 4. If you are a buyer, and the seller gave you an incomplete set of goods, a hopelessly damaged product, a product not in the assortment you asked for, did not tell you that five more people own the product, and refuses to correct his mistakes, you can terminate the contract.

How long is a sales contract valid?

The contract is valid until the seller delivers the goods and the buyer pays for it. When this happens, the contract is considered fulfilled.

The contract can include a condition on the transfer of goods by a certain date. After this, the contract does not lose its validity, but the seller will experience a delay if he suddenly did not deliver the goods.

If you buy a product in a store

As soon as you cross the threshold of a store or start adding items to a virtual cart when shopping online, you are a consumer. This is great, because you come under the protection of not only the civil code, but also the special law “On the Protection of Consumer Rights.” Important clarification: this only applies if you are shopping for yourself, and not, for example, for your auto parts store.

Obligation to decorate the consumer corner and place there Rules for the sale of certain types of goods, a book of reviews and suggestions, the law “On the Protection of Consumer Rights” and all information about your store.

Duty to inform. The consumer has the right to know everything about the product, and the seller is obliged to tell him everything he needs to know. For violation of the obligation to inform - termination of the contract or compensation for damages.

The obligation to sell the goods at the price which is written on the price tag. The seller cannot change the price during the transaction, and cannot suddenly change his mind and sell at a higher price.

The obligation to sell everything that is on display unless the seller specifically writes “Not for Sale” on the item.

Obligation to accept goods for exchange and return according to Art. 18 and art. 25 of the Law “On Protection of Consumer Rights”.

We wrote before.

Do not abuse your consumer rights. Courts sometimes side with sellers.

For example, citizen Khokhlov decided to sue a nut producer for finding a dead mouse in a pack of nuts. However, the judge of the Khoroshevsky District Court in the decision in case No. 2-176/2011 ruled that the manufacturer was not to blame and the mouse could not have gotten into the package of roasted hazelnuts during packaging. This means that the mouse was strangled and thrown into an already open packet of nuts. So Khokhlov was indirectly recognized as a blackmailer and his demands were not satisfied.

Remember

The main thing in a sales contract is to accurately and clearly stipulate what kind of product is being discussed.
There is almost always no need to conclude a written agreement. But if you are buying an apartment, a car or something very expensive, we still recommend drawing up and signing an agreement.
The consumer is always right, but should never abuse their rights.

The contract is compensated, mutual, bilateral, consensual (considered concluded from the moment the parties reach an agreement on all essential terms. It is also possible to conclude a real sales contract, in which the contract is executed at the time of its conclusion, for example, when purchasing goods in a retail store networks).

Types of contracts:

1) retail purchase and sale;
2) supply of goods;
3) supply of goods for government needs;
4) contracting;
5) energy supply;
6) sale of real estate;
7) sale of the enterprise.

Elements of the contract:

1. Subject: thing (individually defined or generic), including money (currency, collectible rubles), securities.
2. Parties: all subjects of the GP who have the necessary legal capacity and capacity can act. The seller must be the owner of the item being sold or an authorized person.
3. Contents of the agreement - its terms. They are considered agreed upon if the contract allows the name and quantity to be determined. Price is not an essential condition. The quality of the goods must comply with the contract. It may be defined by a sample or a description. May set higher quality requirements.
4. Form of agreement - according to the rules on forms of transaction.

The period for fulfillment by the seller of the obligation to transfer the goods to the buyer is determined by the contract by mutual agreement (a fixed date of the month and year, the period of time during which the goods must be transferred by the seller to the buyer, etc.).

The seller’s obligation to transfer the goods includes the transfer of goods to the buyer:

- that which is provided for in the contract and within the agreed period (if absent, then within a reasonable period);
- together with accessories and documents (registration certificate, operating instructions, etc.);
- in a specified quantity;
- free from any rights of third parties;
- in the required range and quantity;
- of appropriate quality, in proper packaging and containers.

The obligation to transfer the goods is considered fulfilled at the moment:

- delivery of the goods to the buyer or the person indicated by him, if the contract provides for the seller’s obligation to deliver the goods;
- placing the goods at the disposal of the buyer, if the goods must be transferred to the buyer or a person indicated by him at the location of the goods.

The buyer's obligations are to accept the goods and pay a certain price for them (unless there are grounds to demand replacement of the goods or refusal of the goods).

Additional responsibilities may also be provided related to information related to the position of the parties, the subject, methods of execution and enforcement of the contract, insurance, and storage of the subject of the contract.

In case of non-fulfillment or improper performance of the contract, the parties have obligations to compensate for losses caused and pay sanctions.

The risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law or contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer.

Questions for discussion at the seminar

1. Concept, essence and meaning of the purchase and sale agreement.
2. Subject of the purchase and sale agreement.
3. Parties to the purchase and sale agreement.
4. Terms of the purchase and sale agreement.
5. Assortment, completeness, quantity and quality of goods.
6. Types of sales contracts.

Topics of reports, abstracts

1. Sales and purchase agreement: history and modernity.
2. The problem of legal qualification of the subject of the purchase and sale agreement.
3. Rights and obligations of the parties under the purchase and sale agreement.
4. Eviction of goods in a sales contract: procedure and consequences.
5. Legal regulation of the quality of goods in the purchase and sale agreement.
6. Features of the retail purchase and sale agreement.

When analyzing the subject composition of this agreement, the cadet must remember general rules legal capacity (Articles 28, 30, etc.). In addition, it is necessary to take into account that the seller can be not only the owner, but also the subject of limited property rights (Articles 294, 296 of the Civil Code of the Russian Federation), as well as other authorized persons, such as an agent (Article 1005 of the Civil Code of the Russian Federation), trustee manager (Article 1012 of the Civil Code of the Russian Federation). In this regard, specific features may be provided regarding the procedure, content and form of concluding an agreement. These requirements can be found not only in the “Purchase and Sale” section, but also in other sections of the Civil Code of the Russian Federation, as well as in other laws and by-laws that define legal status relevant entities acting as parties to the contract.

Next, the listener should study in detail the obligations of the parties and the consequences of their failure or improper performance. When studying the individual contracts that form this group of obligations, it is important to remember that the general provisions on sales and purchases are applicable to specific types, unless special rules provide otherwise.

The Civil Code of the Russian Federation specifically highlights retail purchase and sale agreements, real estate sales agreements, supply agreements, contracting agreements, and energy supply agreements. Each of them is further divided into separate groups, which is important to know when choosing the legal norm to be applied.

It is also recommended to study the features of the conclusion and content of a retail purchase and sale agreement relating to goods purchased according to samples, complex household appliances and other types, enshrined in the Rules for the sale of certain types of goods... approved by Decree of the Government of the Russian Federation of January 19, 1998 No. 55 , as well as in the rules for the sale of goods based on samples, approved by Decree of the Government of the Russian Federation of July 21, 1997 No. 918 and other similar rules.

When determining the rights and obligations of the parties, pay special attention to the meaning of terms such as “completeness of goods” and “set of goods”.

Real estate sale agreement. The main feature that makes it possible to distinguish this agreement from the system of purchase and sale agreements is its subject - real estate. In this regard, the cadet should remember which objects are classified as real estate by law (Article 130 of the Civil Code of the Russian Federation), features legal regime each group of real estate, since the specifics of the sale are predetermined by the specifics of assigning real estate to the corresponding group.

Particular attention should be paid to the analysis of the rights of creditors, since according to their demands, the agreement for the sale of an enterprise can be declared invalid in whole or in the relevant part. In addition, it is important to understand why the general rules on the consequences of invalidity of transactions and on the amendment or termination of a purchase and sale agreement, providing for the return or recovery in kind of what was received under the agreement on one side or on both sides, cannot be applied to the agreement for the sale of an enterprise.

Questions for self-control

1. Concept, essential terms and content of the purchase and sale agreement.
2. How is the moment when the buyer’s ownership (or other property right) to the goods arises?
3. Which party to the sales contract bears the risk of accidental loss of the goods?
4. What is the significance of the conditions regarding price, quality, quantity, and assortment of goods?
5. Service life, shelf life, guarantee period. Disadvantages of the product (significant and ordinary).
6. Give a general description of the Law of the Russian Federation “On the Protection of Consumer Rights”.
7. What is the procedure for concluding a supply agreement?

8. How does a government contract differ from a contract for the supply of goods for government needs?
9. What features does the energy supply agreement have?
10. How does a contract for the sale of real estate differ from a contract for the sale of an enterprise?

Question:

The concept of a purchase and sale agreement. General characteristics of the purchase and sale agreement.

Answer:

Concept and general characteristics of the purchase and sale agreement

Under a purchase and sale agreement, one party (seller) undertakes to transfer the property (goods) to the other party (buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it. Peculiarities legal regulation The purchase and sale agreements are contained in: 1) Ch. 30 Civil Code of the Russian Federation; 2) Law of the Russian Federation of 02/07/92 “On the Protection of Consumer Rights”; 3) UN Convention of April 11, 1980 “On Contracts for the International Sale of Goods”; 4) other orders. and podzak. acts.

The moment the buyer acquires ownership of the goods is the moment the thing is transferred, unless otherwise provided by law or contract.

The purchase and sale agreement is consensual, mutual, compensated.

The subject of a purchase and sale agreement can be any thing, with the exception of things the presence of which in circulation is not allowed or is allowed with a special permit, if the parties to the agreement do not have such permission. The only essential condition of the contract is the condition on the subject of the contract; it is considered agreed upon if the contract makes it possible to determine the name and quantity of the goods. The usual terms of the contract are the terms of quantity, assortment, price, quality, containers and packaging, set and completeness of goods.

The quantity of goods to be transferred to the buyer is provided for in the purchase and sale agreement in the appropriate units of measurement or in monetary terms, or can be determined in the manner established in the agreement. The purchase and sale agreement may provide for the transfer of goods in a certain ratio by type, model, size, color or other characteristics (assortment); in this case, the seller is obliged to transfer to the buyer the goods in the assortment agreed upon by the parties.

The seller is obliged to transfer to the buyer the goods, the quality of which corresponds to the purchase and sale agreement. If there are no conditions in the sales contract 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. The seller is obliged to transfer to the buyer the goods that comply with the terms of the purchase and sale agreement regarding the set (a set of homogeneous goods that together serve a corresponding purpose) and completeness (a set of components, parts, assemblies that are parts of a single whole and cannot be used separately from each other ).

Unless otherwise provided by the purchase and sale agreement and does not follow from the essence of the obligation, the seller is obliged to transfer the goods to the buyer in containers and (or) packaging, with the exception of goods that by their nature do not require packaging and (or) packaging.

The buyer is obliged to pay for the goods at the price stipulated by the purchase and sale agreement, or, if it is not provided for by the agreement and cannot be determined based on its terms, at the price that, under comparable circumstances, is usually charged for similar goods, and also to perform actions at his own expense , which, in accordance with the law, other legal acts, agreements or customary requirements, are necessary to make the payment.

Zvyagintsev M.G.
Civil law. Part two
year 2009

At the same time, general provisions apply to certain types of sales contracts, unless otherwise provided by the rules of the Civil Code of the Russian Federation on these types of contracts (clause 5 of Article 454 of the Civil Code of the Russian Federation).

In addition, the general provisions on contracts, obligations and transactions apply to sales contracts.

The concept of a purchase and sale agreement. By purchase and sale agreement the seller undertakes to transfer ownership of the goods to the buyer, and the buyer undertakes to accept these goods and pay a certain amount of money for them.

Legal characteristics of the purchase and sale agreement. The purchase and sale agreement is consensual, compensated, and mutual.

Essential terms of the purchase and sale agreement. The conditions in the absence of which the purchase and sale agreement is considered not concluded include provisions on its subject matter.

For certain types of purchase and sale agreements, the Civil Code of the Russian Federation establishes additional essential conditions. For example, for a supply agreement, such a condition, in addition to the subject, is the term, and for a contract for the sale and purchase of real estate, an enterprise, the price.

Subject of the purchase and sale agreement. Goods under a sales contract in accordance with clause 1 of Art. 455 of the Civil Code of the Russian Federation, there may be, first of all, things that are not seized and not limited in circulation (the purchase and sale of limited circulation items is allowed in cases and within the limits established by law). In paragraph 2 of Art. 455 of the Civil Code of the Russian Federation provides that the subject of the contract can be both goods that the seller already has at the time of concluding the contract, and goods that will only be created or acquired by the seller in the future (future things).

Failure to fulfill this obligation (provided that the buyer did not know or should not have known about the rights of third parties to the goods) gives the buyer the right to choose:

demand a reduction in the price of a product;
demand termination of the contract;
if a third party files a claim against the buyer for the seizure of goods, demand that the seller enter into the matter on the buyer’s side (Article 462 of the Civil Code of the Russian Federation). At the same time, the buyer’s failure to involve the seller in the case releases the seller from liability to the buyer if the seller proves that by taking part in the case, he could have prevented the seizure of the sold goods from the buyer;
demand the application of liability measures (compensation for losses, including those caused by the demand of the purchased goods from the buyer by third parties). A feature of liability is that the agreement of the parties to release the seller from liability in the event of a demand for the purchased goods from the buyer by third parties or to limit it is invalid (Clause 2 of Article 461 of the Civil Code of the Russian Federation).

3. Hand over the goods along with accessories and documents.

Accessories and documents transferred to the buyer along with the goods are usually defined in various rules for the sale of goods. Thus, in accordance with clause 51 of the Rules for the sale of certain types of goods, when transferring technically complex household goods to the buyer, a technical passport or other document replacing it indicating the date and place of sale, operating instructions and other documents are simultaneously transferred to the buyer, and in accordance with clause 59, upon transfer The buyer of cars, motorcycles, trailers is simultaneously given a set of accessories and documents installed by the manufacturer, including a service book or another document replacing it, as well as a document certifying ownership of the vehicle or numbered unit, for their state registration in the prescribed manner.

If the seller does not transfer accessories or documents related to the goods, the buyer has the right (Article 464 of the Civil Code of the Russian Federation):

assign him a reasonable time limit for their transfer;
if supplies or documents are not transferred to specified period, refuse the goods, unless otherwise provided by the contract;

4. Transfer the goods in the quantity specified in the contract.

The quantity of goods to be transferred to the buyer is stipulated in the purchase and sale agreement in the appropriate 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 determining it (Article 465 of the Civil Code of the Russian Federation). Thus, the Presidium of the Supreme Arbitration Court of the Russian Federation recognized as unlawful the court’s conclusion that the contract was not concluded due to the absence of conditions on the quantity of goods, which would require agreeing on the quantity of supplied products over the phone.

If the seller, in violation of the purchase and sale agreement, transferred to the buyer a smaller quantity of goods than determined by the agreement, the buyer, in the absence of other provisions in the agreement, has the right (clause 1 of Article 466 of the Civil Code of the Russian Federation):

demand the transfer of missing goods;
refuse the goods and payment for them, and if the goods have been paid for, demand a refund of the amount paid (reject the contract);
demand the application of a measure of liability (compensation for damages).

If the seller has transferred goods in quantities exceeding those specified in the sales contract, the buyer has the right:

accept all the goods (only after prior notification of the seller about the surplus and the seller’s refusal to dispose of the goods within a reasonable time after notification);
give up excess;
demand the application of a measure of liability (compensation for damages).

5. Deliver the goods in the agreed assortment.

The range of goods is its types, models, sizes, colors or other characteristics (Articles 467-468 of the Civil Code of the Russian Federation).

If the assortment in the purchase and sale agreement is not defined and the agreement does not establish the procedure for determining it, but from the essence of the obligation it follows that the goods must be transferred to the buyer in assortment, the seller has the right to transfer to the buyer the goods in assortment based on the needs of the buyer, which were known to the seller at the moment of conclusion of the contract, or refuse to perform the contract.

The rules on the consequences of non-compliance by the seller with the terms of the assortment agreement are dispositive and are valid unless otherwise stated in the agreement.

When the seller transfers goods in an assortment that does not comply with the contract (i.e. the assortment condition is completely violated), the buyer has the right:

refuse to accept the goods and pay for them, and if they have been paid for, demand the return of the amount paid (reject the contract);
demand the application of a measure of liability (compensation for damages).

If the seller has transferred, along with goods whose assortment complies with the purchase and sale agreement, goods in violation of the assortment condition (i.e. the assortment condition is partially violated), the buyer has the right, at his choice:

accept goods that meet the assortment condition and refuse the remaining goods (if such goods have been paid for, demand the return of the paid amount and apply a measure of liability - interest under Article 395 of the Civil Code of the Russian Federation);
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 (if such goods have been paid for, demand the return of the paid amount and apply a measure of liability - interest under Article 395 of the Civil Code of the Russian Federation);
accept all transferred goods. In this case, goods that do not comply with the terms of the purchase and sale agreement regarding the assortment are considered accepted if the buyer does not inform the seller of his refusal of the goods within a reasonable time after receiving them;
demand the application of a measure of liability (compensation for damages).

6. Deliver the goods of proper quality.

if the quality of the goods complies with the terms of the contract;
in the absence of conditions in the contract regarding the quality of the goods - if it is suitable for the purposes for which goods of this kind are usually used;
if the product is suitable for use in accordance with the purposes of its acquisition, of which the seller was informed by the buyer at the conclusion of the contract;
when selling goods according to a sample and (or) description - if the product corresponds to the sample and (or) description;
if there are mandatory requirements for the quality of the goods sold in the law or other regulations - if the goods comply with these mandatory requirements(only if the seller is an entrepreneur). By agreement between the seller and the buyer, goods may be transferred that meet increased quality requirements compared to the mandatory requirements.

By mandatory requirements we mean, first of all, requirements that ensure the safety of the product.

TO regulatory documents Standardization in force in Russia includes: state standards of the Russian Federation (GOSTs); international (regional) standards, rules, norms and recommendations for standardization applied in the prescribed manner; all-Russian classifiers technical and economic information; industry standards (OSTs); enterprise standards (STPs); standards of scientific, technical, engineering societies and other public organizations.

Federal Law “On Quality and Safety food products", for example, it is stipulated that the requirements for the quality of food products are established by the relevant state standards, and the requirements for their safety and nutritional value are in accordance with sanitary norms and rules (SanPiN).

The law, other legal acts, mandatory requirements of state standards or a purchase and sale agreement may provide for checking the quality of the goods transferred to the buyer (Article 474 of the Civil Code of the Russian Federation).

When transferring goods of inadequate quality (except for the case where the defects of the goods were specified by the seller when transferring the goods), the buyer has the right to choose:

demand gratuitous elimination of defects in the goods within a reasonable time (unless otherwise follows from the nature of the goods or the essence of the obligation);
demand reimbursement of your expenses for eliminating defects in the goods (unless otherwise follows from the nature of the goods or the essence of the obligation);
demand the application of a measure of liability (compensation for damages).

In case of a significant violation of quality requirements, the buyer has the right to additionally choose:

refuse to fulfill the contract (i.e. return the goods) and demand a refund of the amount of money paid for the goods;
demand the replacement of goods of inadequate quality with goods that comply with the contract (unless otherwise follows from the nature of the goods or the essence of the obligation).

Thus, the specific rights of the buyer depend on the significance of the defects.

Special laws may establish other buyer rights. So, for example, the Law of the Russian Federation “On the Protection of Consumer Rights” expands the rights of the buyer, since in the contract he is “opposed” by economically more strong point- entrepreneur.

The buyer has the right to present the above-mentioned claims related to defects in the goods only if the defects are discovered within a certain time frame (Article 477 of the Civil Code of the Russian Federation). There are several options here.

First option. The product has a warranty period. The warranty period is the time during which the seller

guarantees that the product will meet quality requirements. The warranty period begins to run from the moment the goods are transferred to the buyer, unless otherwise provided by the purchase and sale agreement. The quality guarantee of the product also applies to all its constituent parts (components), unless otherwise provided by the purchase and sale agreement.

If the warranty period is less than two years, then:

a) the buyer has the right to make claims if defects are discovered within the warranty period. In this case, the seller is required to prove that defects in the goods arose after their transfer to the buyer as a result of: 1) violation by the buyer of the rules for using the goods or storing them; 2) or actions of third parties; 3) or force majeure. If the seller proves one of these circumstances, the buyer has no right to make claims related to the quality of the goods;

b) the buyer has the right to make claims after the expiration of the warranty period, but within two years from the date of transfer of the goods. However, the burden of proof falls on the buyer. The buyer must prove that: 1) the defects arose before the transfer of the goods; 2) or for reasons that arose before this moment. Only if the buyer proves one of these circumstances can he present claims to the seller related to the quality of the goods.

Thus, claims by the buyer can be made both in case of detection of defects within the warranty period, and after its expiration (but within two years). The warranty period here has legal significance for the distribution of the burden of proof. In the first case, the burden of proof falls on the seller, in the second - on the buyer. The expiration of the warranty period does not entail the termination of the buyer's right to make claims related to defects against the seller (but the defects must be discovered within two years from the date of transfer of the goods).

If the warranty period is more than two years or equal to two years, then the buyer has the right to make claims only if defects are discovered within the warranty period. In this case, the seller is required to prove that defects in the goods arose after their transfer to the buyer as a result of: 1) violation by the buyer of the rules for using the goods or storing them; 2) or actions of third parties; 3) or force majeure. If the seller proves any of these circumstances, the buyer has no right to make claims related to defects in the goods.

Special rules for components must be taken into account.

If a component product has a warranty period of shorter duration than the main product, the buyer has the right to make claims related to defects in the component product if they are discovered during the warranty period for the main product.

If the contract establishes a warranty period for a component product that is longer than the warranty period for the main product, the buyer has the right to make claims related to defects in the product if defects in the component product are discovered during the warranty period for it, regardless of the expiration of the warranty period for the main product .

Second option. The product has an expiration date.

Shelf life is the time after which a product is considered unsuitable for its intended use. The obligation to establish an expiration date may be provided for by law or other regulations. The seller is obliged to transfer a product for which an expiration date has been established 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. The shelf life of a product is determined by the period of time, calculated from the date of its manufacture, during which the product is suitable for use, or the date before which the product is suitable for use.

If a product has an expiration date, the buyer has the right to make claims related to defects only if the defects are discovered within the expiration date.

In this case, the seller is required to prove that defects in the goods arose after their transfer to the buyer as a result of: 1) violation by the buyer of the rules for using the goods or storing them; 2) or actions of third parties; 3) or force majeure. If the seller proves one of these circumstances, the buyer has no right to make claims related to the quality of the goods.

Third option. There is no warranty period or expiration date for the product.

In this case, the buyer has the right to make claims related to defects, provided they are discovered within a reasonable time, but within two years from the date of transfer of the goods (or within a longer period when such a period is established by law or contract).

For goods to be transported or sent by mail, it is stipulated that the period for identifying defects is calculated from the day the goods are delivered to their destination.

The buyer will have to prove that: 1) the defects arose before the transfer of the goods; 2) or for reasons that arose before this moment. Only if the buyer proves one of these circumstances, he can present claims to the seller related to the quality of the goods for which the warranty period and expiration date are not established.

7. Transfer the goods in the agreed upon completeness and completeness.

The articles of the Civil Code of the Russian Federation devoted to the completeness and completeness of the transferred goods (478-480) do not provide definitions of these concepts.

The completeness of a product should be understood as the totality components the main product (parts, assemblies, etc.), which forms a product with certain consumer properties. As a rule, the components are not used independently. For example, a car may be equipped with air conditioning and a car radio, but it may also be sold without these components. The audio player can be equipped with batteries, or it can be sold without them. Components are replaced with products that are similar in their functional purpose, which allows the parties to the contract to choose options that are suitable for them.

The seller is obliged to transfer to the buyer the goods that comply with the terms of the purchase and sale agreement regarding completeness.

If the purchase and sale agreement does not specify the completeness of the goods, the seller is obliged to transfer to the buyer the goods, the completeness of which is determined by business customs or other usually imposed requirements.

In contrast to completeness, a set of goods consists of a certain set of independent goods, each of which has consumer properties and can be used independently. Typical examples are furniture sets and tea sets. From these complex items, individual items can be removed (or added) without affecting the functional use of the remaining parts of the set.

Unless otherwise provided by the purchase and sale agreement and does not follow from the essence of the obligation, the seller is obliged to transfer to the buyer all the goods included in the set at the same time. In this case, the seller’s obligation to transfer to the buyer a certain set of goods in the set is considered fulfilled from the moment of transfer of all goods included in the set.

In the event of the transfer of goods that do not comply with the conditions of completeness and set, the buyer has the right, at his choice:

demand a proportionate reduction in the purchase price;
require replenishment of goods within a reasonable time.

If the seller fails to comply with the buyer’s request to complete the goods within a reasonable time, the buyer has the right:

demand replacement of an incomplete product with a complete one;
refuse to execute the purchase and sale agreement and demand the return of the amount of money paid (in this case, the right to demand payment of interest under Article 395 of the Civil Code of the Russian Federation);
demand the application of a measure of liability (compensation for losses; payment of a penalty provided for by law or contract).

8. Hand over the goods in containers and (or) packaging.

According to Art. 481 of the Civil Code of the Russian Federation, unless otherwise provided by the purchase and sale agreement and does not follow from the essence of the obligation, the seller is obliged to transfer the goods to the buyer in containers and (or) packaging, with the exception of goods that by their nature do not require packaging and (or) packaging.

Containers and packaging of goods are necessary to ensure their safety. Requirements for containers and packaging of goods are determined in the sales contract. The absence of relevant conditions in the contract does not relieve the seller of the obligation to package and pack the goods to be transferred to the buyer: in this case, as a general rule, the goods must be packaged and packaged in the usual way for such goods or, in any case, in a way that will ensure their safety under normal conditions. storage and transportation conditions.

In some cases, legislation specifically establishes certain rules regarding containers and (or) packaging certain goods. For example, by virtue of clause 35 of the Rules for the sale of individual goods by weight foodstuffs are transferred to the buyer in packaged form without charging additional packaging fees. Materials that meet the mandatory requirements of standards are used for packaging. According to clause 93 of these Rules, the sale of copies of audiovisual works and phonograms is carried out only in the manufacturer’s packaging.

In cases where goods subject to packaging and (or) packaging are transferred to the buyer without containers and (or) packaging or in improper containers and (or) packaging, the buyer has the right, unless otherwise follows from the contract, the essence of the obligation or the nature of the goods, to choose (Article 482 Civil Code of the Russian Federation):

require the seller to stock and (or) package the goods;
replace improper containers and (or) packaging;
present claims arising from the transfer of goods of inadequate quality;
demand the application of a measure of liability (compensation for damages).

Obligations of the buyer under the purchase and sale agreement.

The buyer under the purchase and sale agreement is obliged to:

1. Accept the transferred goods.

The buyer does not bear this obligation if (Article 484 of the Civil Code of the Russian Federation):

he has the right to demand replacement of the goods (for example, when transferring goods of inadequate quality);
or refuse to fulfill the purchase and sale agreement (for example, when transferring goods in an assortment that does not comply with the agreement).

Acceptance of goods means the performance by the buyer of actions that, in accordance with the usually imposed requirements, are necessary on his part to ensure the transfer and receipt of the relevant goods (unless otherwise provided by law, other legal acts or the purchase and sale agreement).

The nature of these actions depends on the content and subject of the purchase and sale agreement, as well as on the requirements usually accepted in practice in relation to certain types of purchase and sale agreement. These may be actions related to the buyer’s responsibility for transporting the goods, inspecting the goods, preparing premises for storing goods, etc. It is advisable to always establish the specific method of acceptance of the goods in the purchase and sale agreement.

If the buyer fails to fulfill the obligation to accept the goods, the seller has the right to choose (clause 3 of Article 484 of the Civil Code of the Russian Federation):

require the buyer to accept the goods;
demand the application of liability measures (compensation for losses; collection of penalties in cases established by law or contract).

2. Pay for the goods.

According to Art. 486 of the Civil Code of the Russian Federation, the buyer is obliged to pay for the goods immediately before or after the seller transfers the goods to him, unless otherwise provided by legal acts or the purchase and sale agreement and does not follow from the essence of the obligation.

As a rule, the moment of payment for goods is determined by the essence of the contractual obligation and the method of payment for goods chosen by the parties. Thus, payment for energy transferred by the seller is most often made after its consumption by the buyer in accordance with accounting data (clause 1 of Article 544 of the Civil Code of the Russian Federation); payment for goods that will be created by the seller in the future - as a rule, partially before the transfer of the goods and in the remaining amount after its transfer to the buyer, etc.

If there is no provision in the contract stating whether the buyer of the goods makes a one-time payment in full or in installments, the buyer of the goods makes a one-time payment in full.

If the buyer fails to fulfill the obligation to pay for the goods in a timely manner (i.e. allows late payment), the seller has the right to simultaneously:

demand payment for goods;
demand the application of liability measures (payment of interest for the use of other people’s in cash in accordance with Art. 395 Civil Code of the Russian Federation; compensation for losses in excess of the amount of interest. It must be taken into account that the simultaneous collection of interest under Art. 395 of the Civil Code of the Russian Federation and legal or contractual penalties are not allowed. In this case, the seller has the right to choose to demand payment of either interest or a penalty);
if the seller, in accordance with the contract, is obliged to transfer to the buyer not only goods that the buyer has not paid for, but also other goods, - suspend the transfer of these goods until full payment for all previously transferred goods.

If the buyer refuses to pay for the goods, the seller has the right to choose:

demand payment for goods;
refuse to perform the contract;
demand the application of liability measures (payment of interest for the use of other people's funds in accordance with Article 395 of the Civil Code of the Russian Federation; compensation for losses in excess of the amount of interest; payment of a penalty);
if the seller, in accordance with the contract, is obliged to transfer to the buyer not only goods that the buyer has not paid for, but also other goods, suspend the transfer of these goods.

Payment for goods may include value added tax, but this does not mean that penalties or interest as penalties should be charged, inter alia, on the amount of tax payments included in the price. The Presidium of the Supreme Arbitration Court of the Russian Federation has repeatedly pointed this out.

3. Pre-pay for the goods, if provided for in the contract.

According to Art. 487 of the Civil Code of the Russian Federation, the prepayment provided for by the contract must be made by the buyer within the period stipulated by the contract, and if such a period is not provided for by the contract - within a reasonable time in accordance with the provisions of Art. 314 Civil Code of the Russian Federation.

Most often, advance payment for goods is found in contracts for the sale of goods that will be created in the future.

In case of failure to fulfill the obligation to pre-pay for the goods, the Civil Code of the Russian Federation provides the seller with the rights provided for in Art. 328 on counter-fulfillment of obligations, i.e. The seller has the right to choose:

suspend the performance of their duties until the advance payment is made and demand the application of a measure of liability (compensation for damages);
refuse to fulfill the contract and demand the application of penalties (compensation for damages).

4. When selling goods on credit, make payment within the period stipulated by the contract, and if such a period is not provided, within the period determined in accordance with Art. 314 Civil Code of the Russian Federation.

The sale of goods on credit has recently become widespread in Russia.

According to Art. 823 of the Civil Code of the Russian Federation, a purchase and sale agreement providing for deferred payment for goods refers to a commercial loan. Therefore, unless otherwise provided by the rules of Chapter 30 of the Civil Code of the Russian Federation and does not contradict the essence of the obligation, the rules on a loan agreement (clause 2 of Article 823 of the Civil Code of the Russian Federation) apply to a contract for the sale and purchase of goods on credit as a type of commercial loan.

The agreement may establish interest for the use of a commercial loan, paid by the buyer to the seller. Such interest does not relate to liability, but is a payment for the lawful use of funds.

If there are no conditions in the law or agreement on the amount and procedure for paying interest for using a commercial loan, you should be guided by the provisions of Art. 809 of the Civil Code of the Russian Federation, i.e. the amount of interest is determined by the existing refinancing rate at the place of residence of the seller, and if the seller is a legal entity, at the place of its location on the day the buyer pays the amount of the debt or its corresponding part.

Interest for using a commercial loan is payable from the date determined by law or agreement. If this point is not defined by law or contract, it should be assumed that such an obligation arises from the moment the goods are received and ends when the buyer fulfills his obligations (full payment for the goods) or when the goods are returned to the seller.

There is a type of purchase and sale agreement in which a commercial loan, unless otherwise stated in the agreement, is assumed to be interest-free. According to paragraph 3 of Art. 809 of the Civil Code of the Russian Federation, such agreements include agreements concluded between citizens for an amount not exceeding 50 minimum wages, and not related to the implementation of entrepreneurial activities by at least one of the parties.

It should also be taken into account that by virtue of clause 5 of Art. 488 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, from the moment of transfer of the goods to the buyer and until payment, goods sold on credit are recognized as being pledged by the seller to ensure the fulfillment by the buyer of his obligation to pay for the goods.

In judicial practice, questions arise regarding the state registration of collateral when selling real estate on credit. If it follows from the agreement that the property was sold on credit, during state registration of the transfer of ownership rights the registering authority is obliged to enter it into the Unified State Register rights along with a record of the transfer of ownership from the seller to the buyer a record of mortgage by operation of law. The procedure for state registration of such a mortgage is established by the Federal Law “On Mortgage (Pledge of Real Estate)”. Registration of a mortgage by force of law is carried out by the registering authority simultaneously with the state registration of the property rights of the person whose rights are encumbered by the mortgage (buyer), without submitting a separate application and without paying for state registration (clause 2 of article 20 Federal Law“On mortgage (real estate pledge)”).

If the buyer, who received the goods on credit, does not fulfill the obligation to pay for it on time, the seller has the right:

demand payment for the transferred goods;
demand the return of unpaid goods;
demand the application of liability measures (payment of interest for the use of someone else’s money in accordance with Article 395 of the Civil Code of the Russian Federation on the overdue amount from the day when the goods should have been paid for under the contract until the day the buyer pays for the goods. Arbitrage practice proceeds from the fact that interest for the use of other people's funds is a measure of civil liability and is accrued on the amount of payment without taking into account interest accrued on the day of repayment for the use of borrowed funds, unless there is a direct clause in the rules binding on the parties or in the contract about a different calculation procedure percent. On the amount of untimely paid interest for the use of borrowed funds (interest for the use of a commercial loan), when they are payable before the repayment of the principal amount of the loan, interest on the basis of Art. 395 of the Civil Code of the Russian Federation are not accrued unless otherwise expressly provided by law or agreement; compensation for losses in excess of the amount of interest. It must be taken into account that the simultaneous collection of interest under Art. 395 of the Civil Code of the Russian Federation and legal or contractual penalties are not allowed. In this case, the seller has the right to choose to demand payment of either interest or a penalty);

An agreement on the sale of goods on credit may provide for payment for goods in installments (Article 489 of the Civil Code of the Russian Federation). Under an agreement with the condition of paying for goods in installments, payment for goods is made through periodic payments dispersed over time, up to full payment of the price of the goods.

The legislator establishes additional essential conditions for such an agreement: 1) price of the goods; 2) payment procedure; 3) payment terms; 4) amounts of payments.

If the buyer does not fulfill the obligation to pay for the goods in installments, the seller has the right:

refuse to fulfill the contract and demand the return of the sold goods, except in cases where the amount of payments received from the buyer exceeds half the price of the goods. This rule is dispositive and can be changed in the contract;
require the application of liability measures (payment of interest for the use of other people's funds in accordance with Article 395 of the Civil Code of the Russian Federation for an overdue amount from the day when the goods should have been paid for under the contract until the day the buyer pays for the goods. This norm (clause 4 of Article 488 Civil Code of the Russian Federation) is dispositive, the Civil Code or the contract may provide otherwise. Thus, the contract may provide for the buyer’s obligation to pay interest in an amount corresponding to the price of the goods, starting from the day the goods are transferred by the seller; compensation for losses in excess of the amount of interest);
receive satisfaction of their claims from the cost of the goods preferentially before other creditors (since, by virtue of clause 5 of Article 488 of the Civil Code of the Russian Federation, a pledge is established by law in favor of the seller for goods sold on credit before payment by the buyer).

5. Notify the seller of a violation of the terms of the purchase and sale agreement regarding the quantity, assortment, quality, completeness, container and (or) packaging of the goods.

Notification must be made within the period provided for by law, other legal acts or contract, and if such a period is not established, within a reasonable time after a violation of the relevant terms of the contract should have been discovered based on the nature and purpose of the goods (Article 483 of the Civil Code of the Russian Federation ).

If the buyer did not notify the seller of the violation of the terms of the contract and the seller proves that: 1) the lack of notification resulted in the impossibility of satisfying his demands or entails disproportionate expenses for the seller compared to those that he would have incurred if he had been notified of the violation of the contract in a timely manner; 2) he did not know or should not have known that the goods transferred to the buyer do not comply with the terms of the purchase and sale agreement, then the seller has the right:

refuse, in whole or in part, to satisfy the buyer's demands for the transfer of the missing quantity of goods, the replacement of goods that do not comply with the terms of the purchase and sale agreement on quality or assortment, for the elimination of defects in the goods, for the replenishment of goods or for the replacement of incomplete goods with a complete one, for packaging and ( or) about packaging of goods or about replacement of improper containers and (or) packaging of goods.

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