Goods exchange agreement: what to write down, how to pay taxes + template

An exchange agreement is an agreement under which the parties exchange property that belongs to them by right of ownership.

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The subjects of an exchange agreement can be legal entities and individuals, as well as the state and municipalities. In other words, the parties to this agreement may be any legally capable persons.

An exchange agreement can be concluded either orally or in writing. An important nuance is that an oral conclusion is possible only if the subject of the contract in its value does not exceed the minimum wage by ten times. Contracts, the cost of the subject of which exceeds ten times the minimum wage, are drawn up in writing.

Below, using the example of a car exchange agreement, we will look at how such a document is drawn up and what nuances you should pay attention to when drawing it up.

Features of the exchange agreement in 2021

Each party is recognized as both a buyer and a seller, since it both gives and receives the goods. Before concluding an exchange, the parties must agree on what property they will transfer to each other. The subject of the agreement can be any movable and immovable property, as well as securities.

Depending on the type of property indicated in the sample exchange agreement, the parties can negotiate different conditions. For example, if a car exchange agreement is concluded, the text of the document must contain information about their brands, body and engine numbers, as well as data from documents confirming ownership of the cars.

Important! Services cannot be the subject of exchange.

Item

Information about the subject of the contract is the basis of any agreement. In the case of an exchange agreement, the object itself is the property itself, which is exchanged by the Counterparties. At the same time, it is important to indicate comprehensive characteristics of this property so that no disagreements arise later. In an exchange agreement where the subject is the parties' cars, the following characteristics are indicated: - make of the car; — year of manufacture of the vehicle; — VIN number; - engine capacity; — color of the vehicle; - registration number; — vehicle passport; - registration certificate. So, information about the subject of the agreement in the text of the document is written as follows: The parties, in accordance with this agreement, transfer to each other the following vehicles that belong to them by right of ownership:

Denisov Denis Denisovich transfers in favor of Ilyin Ilya Ilyich a passenger car of the daewoo nexia brand, manufactured in 2011, VIN number - ХХХХХ-ХХХХХХ, engine number - 00000000, engine capacity - 1.4 l., body number - 0000000, color - white, registration number - Х ХХХ ХХ ХХ, vehicle passport – ХХХХХХ, issued (by whom) ХХ ХХ ХХХХ (date of issue). Ilyin Ilyin, in turn, transfers in favor of Denisov Denis Denisovich a passenger car of the Datsun on-Do brand, manufactured in 2011, VIN number - ХХХХХ-ХХХХХХ, engine number - 00000000, engine capacity - 1.4 l., body number - 0000000, color - silver, registration number - X ХХХ ХХ ХХ, vehicle passport - ХХХХХХ, issued (by whom) ХХ ХХ ХХХХ (date of issue). At the time of exchange, the actual cost of each car, as approved by both parties, is set at 450,000 (Four hundred fifty thousand) rubles 00 kopecks. The parties are the owners of these vehicles based on the provision of technical passports. Cars do not belong to third parties by right of ownership, are not pledged or seized.

Essential terms of exchange

The essential condition of the exchange is the subject. So, without indicating the name and quantity of the goods, or other data that clearly defines their exchange agreement in accordance with Art. 432 of the Civil Code of the Russian Federation will be unconcluded (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2002 N 69).

Features of the transfer deadlines for me

The transfer under a barter agreement does not have to be immediate. The deadlines may not coincide; in this case, first one party fulfills the obligations, and after some time, the second. If the terms for the exchange of property are violated, the rules provided for in Art. 328 Civil Code of the Russian Federation:

• if one of the parties does not transfer the goods within the prescribed period, the other party has the right to suspend the transfer of its property or refuse to fulfill the obligation and demand compensation for losses;
• If the conditions of one of the participants in the transaction are not fully fulfilled, then the other participant has the right to suspend the transfer of his property.

The essence of exchange agreements

The barter contract presupposes the presence of two full parties to the agreement, and thus is bilateral and consensual in nature. The peculiarity of the barter contract is the fact that, being compensated in essence, it is in fact equivalent, since neither party receives material benefits by exchanging their goods for another needed one, simply excluding money from the contract as the equivalent of goods.

For these reasons, an exchange agreement is similar to a standard purchase and sale agreement, with the exception of the following features of an exchange agreement:

1. Absence of obligations of one of the parties to pay for the goods;
2. Each party has a dual role, since each participant in the exchange agreement acts both as a seller and as a buyer.

Both individuals and legal entities can act as subjects of exchange agreements, provided they have signs of authority, legal personality and legal capacity.

The conclusion of an exchange agreement is carried out in simple written form, which does not require mandatory notarization of the transaction. Allowing an oral exchange agreement is possible in the following cases:

1. When concluding a contract between private individuals, and only for an amount that will not exceed the total amount of ten minimum wages in force at the time of conclusion of the contract.
2. When concluding an agreement between any participants, but with the condition of transfer of exchanged goods immediately upon reaching an agreement.

There are no legal requirements for the structure of the agreement, but since the exchange agreement is considered derivative from the purchase and sale agreement, it can be drawn up according to the rules for drawing up alienation agreements. However, if it turns out differently, or if the parties to the agreement come up with their own version, it will not be a mistake.

The rights and obligations of the subjects determined by the contract are similar to each other and delegated, that is, generating each other.

Exchange agreement form

The general requirements stipulated by Articles 158 – 162, 164 of the Civil Code of the Russian Federation apply to the form.

An exchange agreement between individuals can be concluded both in written and oral form, and if a legal entity is involved in the transaction, then written form is required.

If the exchanged objects are buildings, structures, land plots, enterprises, residential premises and other real estate, then the transfer of ownership will be subject to mandatory state registration.

When exchanging part of real estate, for example an apartment, a notarization is required.

What laws govern it?

Any transaction with property must be accompanied by reference to the relevant legislative act. Almost all transactions that can be carried out between citizens are reflected in the Civil Code.

It is this normative act that regulates the exchange procedure. Article 567 and the subsequent series of articles in this chapter are devoted to me. Exchange is a fairly popular transaction , but you should not think that you can carry out this procedure yourself without reading the legislation.

Due to the fact that such an agreement constantly increases the number of transactions carried out, changes may be made to the exchange procedure by legislation quite often.

This means that before you begin to formalize an agreement with your opponent, you should thoroughly study the legislative framework.

In addition, the district court's decision on the exchange will be of great help to you as a source of law.

Some cases cause you to go to court, which means you are also at risk .

Responsibility

The parties are responsible for failure to fulfill or improper fulfillment of their obligations in accordance with the agreement and Russian legislation.

In accordance with the Civil Code of the Russian Federation, liability arises when:

• Transfer of goods of inadequate quality.
• Seizure of goods purchased under an exchange agreement by a third party (Article 571 of the Civil Code of the Russian Federation). In this case, you can demand the return of the goods transferred in exchange and (or) compensation for losses.

Important! This obligation can be avoided by proving that the buyer knew about the existence of rights (or grounds for their receipt) of third parties to the exchanged property, Art. 461 Civil Code of the Russian Federation.

Additionally, penalties, fines and penalties can be specified in the exchange agreement. We give an example of such sanctions below.

The penalty is paid only on the basis of a justified written request.

For violation of the terms of transfer, shipment or dispatch or its incomplete transfer, a penalty is established in the amount of 0.01% of the value of the untransferred property for each day of delay.

For an unreasonable refusal to accept goods, the violating party is subject to a fine of 10% of the value of the property not accepted.

Mandatory terms

Optionally, the exchange agreement may provide for:

1. Obligations of participants to provide exchange goods of a certain quality. If the parties do not stipulate quality criteria separately, then, as a general rule, the quality of the product must correspond to its functional purpose.
2. Participants are obligated to provide exchange goods in a special set or in special packaging.
3. The directive establishes conditions obliging the parties to the contract to accept the exchanged goods if the contract did not provide for the ability of the parties to demand replacement of the defective goods. Accordingly, non-acceptance of the exchanged goods entails a set of contractual sanctions, namely:
   Termination of the exchange agreement;
4. Compensation for losses incurred by the other party due to the counterparty's failure to comply with contractual obligations.

Contract options

Depending on the specific situation, the exchange agreement template questionnaire contains the following questions:

Legal status of the parties:

• Entity;
• Individual entrepreneur;
• Individual;

Type of property exchanged:

• Movable property: Equipment;
• Vehicle;
• Securities (shares);
• Share in the authorized capital of the LLC: Transfers to the LLC participant
• Transferred to a third party

Who bears the costs of registering the transfer of rights with the registration authority:

• One of the sides
• Each side in its share

The exchange takes place:

• With additional payment (unequal value).
• No additional payment (equal goods).

Transfer moment:

• Simultaneously;
• Within the time limits specified for each party.

What characteristics and conditions for the transfer of goods are determined in the contract:

• List of accessories;
• List of documents;
• Completeness;
• Warranty period of use;

Delivery. Who makes the delivery: one or another seller on his own or a carrier, indicating at whose expense.

Insurance. This is an optional item. If the parties decide to insure the exchanged goods, it is necessary to indicate who will do this, while indicating the beneficiary under the insurance agreement.

Select the appropriate options, the text of the document will automatically change.

About the opportunity

You are the owner of a good apartment, and now you need to exchange it.

The reasons for this can be very different. People come and go, looking for a more comfortable and larger place, or, on the contrary, trying to limit their needs.

The apartment owner may have different reasons for wanting to carry out such a transaction.

At the same time, if you don’t need real estate in return, why not get a good vehicle , which you would hardly be able to afford on your own. But in theory this is all fine and dandy, but what does practice, in particular legislation, tell us?

Find out on our website whether it is possible to exchange an apartment for a house or a summer cottage, and whether the apartment can be exchanged with a mortgage.

Features of the agreement

The main nuance of barter contracts is the dual nature of the agreement, that is, each participant has the status of both a seller and a buyer. In addition, this procedure has other features:

• the contract is subject to the rules of civil law regulating the procedure for the sale (purchase and sale) of property;
• if there is no mention in the contract of the value of the objects to be exchanged, they are automatically recognized as equivalent;
• the obligation to bear the costs associated with the transaction falls on both parties in equal proportions;
• If there is a discrepancy between the terms of transfer of real estate, the rules on counter-execution are applied to the agreement (Article 328 of the Civil Code).

The text of the agreement on the exchange of an apartment for other property takes the form of a written document, which must necessarily go through the registration procedure with a specialized body.

Participants in the transaction can be both citizens (Russians or foreigners) and organizations (legal entities and entrepreneurs). It is also possible for the Russian Federation and its constituent entities to participate in the agreement.

Algorithm for drawing up a contract

The law does not provide for a universal form of agreement on the exchange of an apartment. The parties can use any type of document acceptable to them. In this case, the contract must reflect the following points:

• participant data – information from the passport, registration, initials;
• name and address of the enterprise (if one or both parties are legal entities);
• information about the property being exchanged (subject of the agreement) – location, name, area;
• cost of the apartment;
• the amount of the surcharge (if any) and which party makes it;
• day and place of execution of the contract;
• title document from each party (grounds for ownership of the property);
• an indication of the presence or absence of an encumbrance (arrest, pledge, debt for housing and communal services);
• form of ownership (sole, shared, joint) – the number of owners of the exchanged property;
• exchange execution deadline (when the transaction is completed);
• features of the property (number of rooms, building material, renovation, etc.);
• unforeseen situations affecting the possibility of exchange;
• grounds and procedure for refusal of the contract;
• rights, obligations, responsibilities of participants (determined by the parties independently);
• signatures of participants.

If desired, participants can provide information about the need for additional payment, the method and procedure for its transfer.

At the last stage of the exchange, an act of acceptance and transfer of the apartment is drawn up. After signing it, the parties acquire not only the rights to the housing, but also responsibility for the received property. The act is drawn up in several copies (at least 2).

How to exchange a car for real estate

To exchange a car for real estate, you first need to find someone willing to carry out such an operation. After all, it is feasible only if the objects and terms of the transaction are satisfactory to both parties. To search for a suitable option, you can use newspapers, social networks or special websites on the Internet where advertisements for the sale or exchange of vehicles are posted, for example, “Avito” or “Change24”. Each city or region has its own sources of information.

To ensure the legal purity of the transaction, the objects must be registered in the name of its participants.

The car must be registered with the traffic police without restrictions or prohibitions. Real estate also cannot have encumbrances.

A house or apartment is often jointly owned by spouses. In this case, one of them provides the other with a notarized consent to the transaction.

Legislation

Civil law does not separate the exchange and sale of real estate.
Both procedures are regulated by the same rules of law, prescribed in Chapters 30 and 31 of the Civil Code. However, unlike a sale, in which one participant (seller) transfers real estate to another (buyer), receiving payment in cash equivalent, each participant in the exchange is both a seller of property and its buyer (Article 567 of the Civil Code), therefore in the contract they are referred to as sides numbered one and two. The owner has the right to exchange his property for any other. Ideally, barter involves the exchange of similar objects, with exceptions possible:

• exchange with additional payment (for example, a smaller area is exchanged for a larger one);
• exchange of living space (one large apartment for several small ones);
• exchange of different types of property (apartment for a car, securities, residential building, etc.).

From a legal point of view, the terms “exchange” and “barter” are different. However, in practice, the use of both concepts is not erroneous.

Thus, exchange refers to a transaction with state apartments (Article 72 of the Housing Code). The parties to the agreement are not owners, but have the status of tenants of municipal housing. The exchange procedure is regulated not only by the civil code, but also by the housing code, and permission from the Administration is required to carry out the operation.

The participants in the exchange are the owners of the apartments and have the right to dispose of them as they wish; no permits are required.

The law prohibits the exchange of municipal apartments for owned property and vice versa.

Storage agreement

A simple written form of a storage agreement is considered complied with if the acceptance of a thing for storage is certified by the custodian by issuing to the bailor a safe receipt, receipt, certificate or other document signed by the custodian of a license plate (number), other sign certifying the acceptance of things for storage, if such a form of confirmation of acceptance of things for storage is provided for by law or other legal act or is customary for this type of storage. As an example, we can cite a transport expedition agreement, the terms of which can include the forwarder’s obligation to store goods belonging to the shipper (recipient of the cargo), as well as the agency agreement we discussed above. Ioffe, they all unanimously supported the point of view that it was impossible for real estate to be the subject of storage.

The act of acceptance and transfer of an apartment under an exchange agreement

After signing the exchange agreement, the actual transfer of property follows. In order to record this fact and avoid any future disputes on this issue, it is necessary to draw up an act of acceptance and transfer of the apartment.

The transfer deed contains the following information:

• sides;
• basis (barter agreement);
• date of;
• property and equipment that is transferred along with the apartment;
• You can also provide a provision on the condition (existing repairs) of the apartment.

The document is signed by both parties.

The transfer and acceptance certificate in the case of the exchange of apartments is drawn up twice: first, the fact of transfer of one apartment is recorded, then another.

Is it necessary to have the agreement certified by a notary and why?

As a general rule, the exchange agreement does not need to be certified by a notary (Article 163 of the Civil Code of the Russian Federation). However, such a document is subject to mandatory notarization in the following situations:

• if the owner of the exchanged property is a person with limited legal capacity or a minor;
• when exchanging property that is in common shared ownership.

As a result, in the presence of the above situations, the parties to the transaction must visit a notary.