Unilateral transaction: features of the conclusion and examples.

○ The concept of a one-sided transaction.

A unilateral transaction is considered to be a transaction for which, in accordance with the law, other legal acts or agreement of the parties, it is necessary and sufficient to express the will of one party. (Clause 2 of Article 154 of the Civil Code of the Russian Federation).

Despite the fact that the possibility of concluding such an agreement is established by law, it is necessary that its signing be confirmed by a specific legal act or agreement between the participants.

The parties to a unilateral transaction can be both legal entities and individuals.

Terms of contracts, types of contracts

Legislation regulates the procedure by which a contract is concluded. In this case, the parties must take into account the conditions under which the contract can be recognized as valid by law. There are certain types of contract terms, including ordinary, incidental and essential terms. The most important are the essential terms of the contract.

If they are not taken into account when concluding the contract, then the document is invalid. So, the essential terms of the contract are the subject of the contract, the conditions specified in the regulations, and the conditions under which the parties can reach an agreement. The subject of the agreement is what it is concluded for. For example, the subject of a purchase and sale agreement is a product, and a contract is the work that one of the parties must perform.

The conditions contained in the acts are those that the legislator has determined for each individual type of contract. The conclusion of an agreement on the basis of which the sale of goods occurs cannot be done without specifying the price in the agreement. As for the conditions upon application of which the subjects can come to agreement, they are, for example, the procedure and timing of payments.

If the parties do not insist on including these conditions in the contract, then it can be considered concluded. Then only the essential terms of the contract relating to the subject matter and mandatory conditions should be taken into account. In a situation where one of the parties requires such conditions to be included in the contract, then the other party must agree, otherwise the agreement will not be concluded. Changes in the terms of the agreement are carried out in the manner prescribed by law.

There are certain types of agreements, among which are: agreements of purchase and sale, supply, lease, as well as agreements of donation, transportation, credit and surety agreements. If we talk about the legal nature, they are divided into the following types of contracts - preliminary and final.

A preliminary agreement is an agreement that implies the conclusion of a main agreement in the future. And the final agreement contains clearly defined information about the rights and obligations of the parties related to the implementation of certain actions. These types of contracts have their own special legal nuances that should be taken into account when concluding.

○ Reasons for occurrence.

A unilateral transaction is any action by individuals or organizations that results in the emergence, change or termination of legal relations. The basis for its occurrence is the expression of the will of one or both parties, which leads to certain legal consequences. The difference between a unilateral transaction is that its implementation by one party generates legal results for the other, which did not take part in the agreement. Examples of a unilateral transaction: drawing up a will, issuing a power of attorney, entering into inheritance rights and other actions that have a legal result.

The general provisions on obligations and contracts are accordingly applied to unilateral transactions, since this does not contradict the law, the unilateral nature and essence of the transaction. (Article 156 of the Civil Code of the Russian Federation).

General provisions on transactions

In modern civil law of the Russian Federation, a comprehensive explanation of the concept of a transaction is given. According to Article 153 of the Civil Code of the Russian Federation, a transaction can be called the actions of legal entities and citizens aimed at changing, terminating and establishing civil rights and obligations. Thus, a transaction is not just a collective concept consisting of several terms, but a legal institution that is characterized by action and a number of other characteristics. The following features inherent in transactions can be distinguished:

legal act;
volitional act, manifested in human action;
a transaction is always a legal action;
the transaction changes, creates and terminates civil rights and obligations.

It should be noted that the transaction will always be characterized by an intellectual factor. This is manifested in the fact that the parties can agree on the existence of a transaction, or they can agree on its absence. Unilateral transactions in civil law are also a source of obligations. It should be noted that this type was identified in the process of studying transactions and their classification. Thanks to this, scientists were able to identify not only unilateral transactions, but also their features and characteristics.

○ Types of transactions.

There are different types of unilateral transactions, the difference between which is determined by their legal consequences.

✔ Legal transactions.

The peculiarity of such a transaction is that it arises from already existing legal relations. Implementation becomes possible if the law or agreement of the participants allows the possibility of unilateral expression of will. An example of this type of transaction could be the collection of property that was provided as collateral in the event of failure to repay debt obligations on time.

✔ Rights-altering transactions.

This agreement is also possible on the basis of an already concluded contract. It makes certain changes to the original conditions. An example of a right-altering unilateral transaction would be the refusal of an ordered product before its arrival.

✔ Law-defying transactions.

Such transactions contain an offer from one of the parties to the other party. The peculiarity is that acceptance of the conditions is not mandatory; in this case, the addressee is only offered certain legal consequences. An example of such a transaction: execution of a will or issuance of a power of attorney.

✔ Legal termination transactions.

This type involves unilateral renunciation of one’s rights. This category, for example, includes the abandonment of inherited property.

It is important to take into account that such a division is quite vague and any unilateral transaction can be classified into several types at once. For example, throwing away an unnecessary item is a terminating transaction, but if it poses a danger to others, the former owner is obliged to dispose of it. And this is already a legal transaction.

What do you need to know about the invalidity of transactions in civil law?

During the webinar of the Federal Chamber of Lawyers on May 6, the editor-in-chief of the Russian School of Private Lawyers Magazine, head of educational programs at Lextorium.com, professor and director of the Center for Comparative Law of the National Research University Higher School of Economics, arbitrator of the ICAC, Arbitration Center at the Russian Union of Industrialists and Entrepreneurs, actual state counselor of justice 2nd class, Ph.D. Andrey Egorov gave two lectures. The first of them was devoted to the topic “Invalidity of transactions in the Civil Code,” writes the FPA press service

At the beginning of his speech, the speaker recalled that, according to Art. 153 of the Civil Code of the Russian Federation, transactions are understood as actions of citizens and legal entities aimed at the emergence, change and termination of civil rights and obligations. According to Andrei Egorov, this definition lacks a very important feature that a transaction is an action that is not simply aimed at generating legal consequences, but is also capable of giving rise to them only because it is the will of the subject. It is very important, the scientist noted, to distinguish transactions from actions that are not transactions - the determining criterion in this case is the presence of objective actions of a person that give rise to legal consequences, while his intention does not matter.

The Supreme Court of the Russian Federation in paragraph 50 of the Plenum Resolution No. 25 of June 23, 2015 indicated that for the purposes of applying the rules on the invalidity of transactions, it should be taken into account that a transaction is an expression of will aimed at establishing, changing or terminating civil rights and obligations (for example, civil -legal contract, issuance of a power of attorney, recognition of a debt, statement of offset, unilateral refusal to fulfill an obligation, consent of an individual or legal entity to complete a transaction). The controversial point here, according to the expert, is the recognition of debt. Thus, the Supreme Court believes that this is a transaction, while according to the classical theory this is not a transaction. Therefore, the lecturer believes, the Court, having called the acknowledgment of a debt a transaction, was either mistaken or had something else in mind (for example, only this type of acknowledgment of a debt that occurs after the statute of limitations has expired).

Andrey Egorov also considered such a category as transactions requiring perception. He noted that this type of transactions is typical only for unilateral transactions, which are divided into those requiring perception (acceptance, refusal of an agreement, set-off) and those not requiring it (will, decision to create a legal entity) - this is important to understand in order to understand at what point the transaction is considered completed. Most one-sided transactions, the expert added, are transactions that require perception. Thus, if a transaction is completed, the will of the party is expressed, but the addressee for whom this transaction gives rise to legal consequences is not notified of this expression of will, the transaction is considered invalid.

Regarding transactions in bankruptcy, the scientist noted that, as a general rule, the fulfillment of obligations is not a transaction, and one must pay attention to what the corresponding performance consists of. Andrei Egorov explained that in case of bankruptcy in Russian law, it is the transactions that are disputed - preferential, fraudulent (suspicious) and transactions with unequal counter-performance (Articles 61.2 and 61.3 of the Bankruptcy Law). In this regard, the question arises: what is meant by transactions in bankruptcy law? Most often, the speaker added, they mean the fulfillment of obligations, and this can also be disputed (except perhaps for purely actual actions such as lecturing and other services).

The lecturer emphasized that in bankruptcy, the concept of a contested transaction should be much broader than the general civil concept of a transaction. In his opinion, in this case it would be more correct to do the same thing as provided for by the Romano-Germanic legal system - to call the acts contested in bankruptcy legal actions rather than transactions. This category, added Andrei Egorov, includes many things that are not recognized as a transaction in civil law. For example, in Romano-Germanic law it is allowed to challenge the failure to declare a limitation period, while Russian bankruptcy law has difficulties with this. “Bankruptcy law is a “thing in itself,” emphasized Andrei Egorov, adding that in Russian civil law there are many situations when the same term is understood differently, in different contexts and different circumstances.

During the lecture, obligatory and administrative transactions were also discussed - another doctrinal classification that has an applied nature. According to the speaker, the practical significance of administrative transactions is very great. Disposition transactions, he explained, are acts of disposing of a right, in particular the transfer of a given right, its encumbrance or termination. Moreover, this is not only a transfer of ownership, but also a waiver of it, an application for the removal of a pledge, an application for set-off, and a unilateral refusal of the contract. For such transactions, special grounds for invalidity are provided: the absence of a right controlled by the subject of legal relations, as well as the absence of administrative power. They are subject to the principle “no one can transfer more rights than he himself has.”

The speaker gave examples of options for limiting administrative power. Thus, according to the Civil Code of the Russian Federation, only the owner can rent out a thing. “This is a gross mistake of the current law and order,” says Andrei Egorov. The fact is, he explained, that the restrictions inherent in administrative transactions are established for lease, while rent is not an administrative transaction, but an obligatory one. The scientist added that the Supreme Arbitration Court of the Russian Federation, in Resolution of the Plenum of November 17, 2011 No. 73, tried to correct this error, but it only succeeded in greatly reducing its application, but not in abolishing this rule as a whole.

The expert further explained the difference between void and voidable transactions. Thus, the latter is contested only in court, and the former is invalid regardless of the court’s decision. According to Andrei Egorov, previously there was a rule that a transaction that violates the law is considered void, and other transactions are considered voidable. “It was not a very good decision,” he believes. “Firstly, it was not clear what a “transaction that does not comply with the requirements of the law” is. Secondly, practice has revealed many cases when the essence of a transaction should be contestable, but the law “forgot” to call it such (for example, large transactions and transactions in which there is an interest). Now Art. 168 of the Civil Code of the Russian Federation contains a rule according to which a transaction is voidable, and only two criteria by which a transaction is considered void. But this, according to the speaker, is an even more serious mistake than before.

In this regard, the expert called on lawyers who have encountered this rule in practice to fight to solve this problem. As a general rule, he emphasized, a transaction made in violation of the law should be void. In the Supreme Court Resolution No. 25 (clauses 74 and 75), a “counter-revolution” was actually carried out, which can be characterized in a positive way. According to paragraph 74 of this resolution, “an agreement, the terms of which contradict the essence of the legislative regulation of the relevant type of obligation, can be qualified as void in full or in the relevant part, even if the law does not contain a direct indication of its nullity. For example, the condition of a property trust management agreement, which establishes that upon expiration of the agreement, the transferred property becomes the property of the trustee, is void.”

Also, as the lecturer noted, if the essence of legislative regulation is violated, the transaction is considered void, and this is a “bridge” laid from the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 23, 2015 No. 25 to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 16 o freedom of contract and its limits, which also emphasizes that freedom of contract ends where the essence of legislative regulation begins.

At the same time, Andrei Egorov added, paragraph 75 of Resolution No. 25, which deals with public interests, is of particular importance. They are understood very broadly - as a violation of any imperative norm containing a prohibition of law. The speaker emphasized that prohibition of law is a special technique characteristic of the Romano-Germanic legal order. “It is a completely correct idea that a violation of public interest in a transaction is recognized as a prohibition by law,” he noted. The lecturer added that the prohibition of the law should not be confused with a mandatory norm: this is a technique in which a transaction can be declared invalid if it violates what the legislator wanted to punish with invalidity. This issue is decided at the discretion of the judge. Practitioners and judges can learn more about this in the draft concept for improving the general provisions of the Civil Code, which was published in the spring of 2009 (Bulletin of the Supreme Arbitration Court of the Russian Federation No. 4) and is available on the website of the Research Center for Private Law.

Another idea of the lecturer was that Art. 169 of the Civil Code of the Russian Federation is needed in order to invalidate a transaction that is not directly prohibited by law, but is contrary to the “spirit of the law.” This article, he believes, has great potential in economic circulation. Despite the fact that Resolution of the Supreme Court of the Russian Federation No. 25 does not solve the above problem in detail (for example, in paragraph 85), the “sprout” of the correct interpretation of Art. 169 of the Civil Code of the Russian Federation is laid down in paragraph. 3 of its clause 17. In addition, there is competition between two legal grounds for the nullity of transactions - Art. 10 and 168 of the Civil Code of the Russian Federation, on the one hand, and Art. 169 of the Civil Code of the Russian Federation – on the other. The expert emphasized that the practice of declaring transactions void under Art. 10 and 168 was created by the Presidium of the Supreme Arbitration Court of the Russian Federation in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 20, 2008 No. 15756/07 and was further consolidated when Art. 169 of the Civil Code of the Russian Federation was not actually applied by the courts (due to the presence of a penalty in it - confiscation to the state).

In the current situation, Art. 169 of the Civil Code of the Russian Federation must be restored to its rights, and the practice of challenging it under Art. 10 and 168 of the Civil Code of the Russian Federation should gradually fade away.

The accompanying materials for the lecture can be found here.

The broadcast will be repeated on Monday, May 11.

Recommendations for conscientious taxpayers

The easiest way to avoid trouble with the tax authorities would be advice not to cooperate with fly-by-night companies. However, no one is safe from collisions with them. Even the most thorough preliminary check may not yield negative results, and at the same time, the counterparties will turn out to be an unscrupulous partner.

For example, a company has been working with a given counterparty for a long time, does not doubt it, orders a product or service, and hears the answer: “We do this through such and such a company.” The goods are received, but then it turns out that “such and such” company turned out to be a one-day company, and now the conscientious taxpayer has problems. If he can prove that the transaction was real, the bad faith of the counterparty in this context will not matter - he will receive his VAT deduction and the inclusion of expenses in the income tax base. Therefore, you need to take care of the timely recording of evidence that will be recognized by tax authorities or the court.

ATTENTION! If a company has received a request from the tax office to provide documents relating to relationships with a particular agent, this is a reason not to wait for a tax audit, but to fully demonstrate its good faith.

Evidence of preliminary verification of the counterparty

It is necessary to save all verification data of the future partner in the form of paper documents or their scans or screenshots in electronic form. The audit should be carried out not so much “to give yourself peace of mind”, but in order to exonerate the taxpayer in case of claims against the counterparty. These documents may include:

data from open sources (registers of the Ministry of Foreign Affairs, Federal Tax Service, VAT payers, etc.);
additional documents (not only constituent documents, but also proving the availability of the material and technical base necessary for the provision of services or delivery of goods).

Regulations for concluding contracts

With a lawyer or independently, management should develop and approve an internal regulatory document regulating the method of selecting counterparties, and in the future not violate this procedure when selecting new potential partners.

Neat primary

A list of the main business operations that the company is engaged in and a corresponding set of mandatory primary payment documents should be compiled:

invoices;
certificates of work performed or services provided;
reports on work performed;
invoices;
invoices for payment;
technical applications, etc.

The set of primary documentation proving the reality of the transaction will differ depending on the subject of the specific transaction: delivery of goods, provision of services, performance of work.

It is mandatory to control the preparation of all primary documentation accompanying the transaction and ensure its preservation. The more correct primary documentation, the fewer questions the tax office has about the reality of the transaction.

Additional evidence

The above recommendations should become part of the company's daily activities. But sometimes it is possible to use additional evidence that has already been tested in judicial practice:

Transparent future fate of the subject of the transaction. If the tax authorities doubt the reality of a transaction with material objects or the right to property, they can be convinced by tracking the path of this product. If the taxpayer company uses them in production, sold them to third parties, or has them in stock, the transaction cannot be fictitious.
Property tax is paid only on real goods! If the tax authorities recognized the object of the disputed transaction as the basis for property tax, it means that the transaction was valid or the property tax will be overpaid. This may be an additional argument against the tax authorities in court.
"On the contrary." The company may apply to the arbitration court with a claim to declare the transaction invalid and to recover costs for it from the counterparty. Then evidence of the reality of the transaction will be confirmed by another authority. If the transaction was real, this will not be difficult, especially since the plaintiff himself is interested in this. The arbitration award is a strong argument, although formally it does not have legislative force for the arbitration court.
Opinion of a third party expert. The law allows the taxpayer to independently conduct an examination of the merits of the case. This is a costly method for the defendant, but if the case wins, the tax office will reimburse the costs. An examination will be especially appropriate if tax authorities are accused of overstating these expenses.
Witness's testimonies. Tax officials can call witnesses at their discretion, but if the case goes to court, the taxpayer also has this right. He submits a petition to hear a witness, noting in it what circumstances of the case he can clarify (for example, he saw how the brought goods were unloaded, etc.). The reality of the transaction can be confirmed by testimony, and the more, the better.

It is much better and more efficient not to collect evidence of tax claims, but to have it ready at all times and for any transaction, especially with a high amount threshold or an increased degree of risk.

What does the tax office look at?

What exactly are tax authorities required to search for evidence:

Subordination of an unscrupulous partner to the taxpayer. If the financial or other dependence of the counterparty on the company with which he entered into a transaction is revealed, then it is absolutely clear that this was done with the aim of obtaining a tax benefit. Creating shell companies is prohibited by law, and in this situation the taxpayer could not help but know that he was cooperating with such a counterparty.

NOTE! This kind of violation does not occur so often; conscientious companies prefer not to deliberately violate the law and not create their own fly-by-night companies.

Why this particular partner? A more common situation is when counterparties are not related to each other. If one of them turned out to be dishonest, the tax office will investigate the question of why he was chosen for cooperation. The reasons for choosing a counterparty are very important in proving the reality of the transaction. This is why it is extremely important to pay attention to checking the reliability of a potential partner before making transactions.

What are real and consensual contracts and how do they differ?

Signatures on documents. All documents signed on behalf of counterparties must have the signatures of persons who have the appropriate authority to do so. If it turns out that the signatory did not have such authority or has not been identified at all, the transaction may be considered fictitious.

FOR YOUR INFORMATION! Mismatched signatures cannot serve as the only evidence, especially in court, because in real life partners rarely have the opportunity to compare signatures in the passports of authorized persons and on documents when concluding a transaction.

Assessing the sufficiency and reasonableness of the counterparty verification. If the taxpayer did not take care to check the integrity of the future partner, he himself is to blame if he turns out to be a fly-by-night. It is necessary to take a number of measures to establish the “adequacy” of partners, and neglecting them is unacceptable. Tax authorities will investigate the following points:
if it exists, whether it was violated in the case of choosing this counterparty;
whether the taxpayer has dealt with other unscrupulous agents before;
how exactly the solvency of a potential partner, his business reputation, and the presence of the necessary conditions for completing the transaction were checked;
how the commercial component of the transaction was assessed.

Formation of the evidence base

To form evidence of the fictitiousness of the transaction, tax officials will pay attention to the following circumstances and analyze them in detail:

Preliminary contact. Were there any preliminary meetings or calls between management or authorized persons of the taxpayer and the potential partner? The lack of personal contacts is almost a guarantee that the deal will not be real.
Evidence from discussions. Were the terms of the deal discussed? If yes, then it means it actually took place. Evidence can be documentary (for example, a draft agreement) and testimony.
Taxpayer awareness. Does the counterparty know exactly where, for example, the partner’s warehouses or retail space are located? If the transaction took place, he cannot be unaware of such important points.
How did you obtain information about the counterparty? The tax office will be interested in where the taxpayer received information about the partner if he does not have his own website, has not advertised in the media, does not have recommendations from other partners, etc.
Have you checked your license? If the counterparty needed a license to carry out its activities, but it does not have one, then there is insufficient verification of its integrity.