How to draw up a barter agreement correctly? Help from a lawyer

An exchange agreement is a multilateral agreement providing for the obligation of the parties to transfer ownership of any property (movable or immovable) or goods. Both parties act as the seller. The parties mutually undertake to convey it and accept it. Very often, disputes arise regarding an exchange agreement between the parties.

In this legal relationship, the subject of exchange is a product, which includes:

residential and non-residential premises;
land;
finished products of own production;
vehicles;
shares in the authorized capital of LLC;
stock;
components and assemblies of vehicles;
shares in property rights;
things;
property rights of citizens and legal entities

The list is not exhaustive, but in each specific case a thorough legal examination of the goods subject to exchange is required. Things and goods must belong to the parties to the agreement.

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Essential terms of the exchange agreement

The necessary (essential) conditions of the exchange agreement are:

name of the thing (product);
its quantity.

Please note: the provisions must be stated in the text. Their absence entails recognition of the barter agreement as not concluded (more information about the signs of non-conclusion of the agreement at the link).

It is recommended that documents reflect:

The deadline for transferring a thing (goods) or from a literal interpretation it can be determined that the thing (goods) must be transferred;
Consequences of failure to comply with the transfer. The party to whom the thing is not transferred by the time specified in the document may not fulfill its obligations or completely refuse them;
The subject of the transaction must be the property of the parties. Otherwise, the party whose rights are infringed has the right to legally return the exchanged goods and demand compensation for losses;
The obligation of the owner of a thing to compensate the counterparty for the difference in commodity value if its price is lower than another;
The need to pay costs arising from the transfer (transport, delivery, etc.)

Important: registration of the agreement in Rosreestr involves two stages of transfer of ownership. However, it is not mandatory; read what disputes under the exchange agreement may arise and how to avoid them by following the link.

USEFUL : watch the video on how to avoid risks when concluding an exchange agreement

Paid and gratuitous contracts

This classification of contracts is given in Article 423 of the Civil Code of the Russian Federation. A remunerative agreement can be conventionally called “you give me - I give you”, that is, for the fulfillment of an obligation by one party, it has the right to demand from the other party monetary payment, property, work, services or other counter-provision.

In gratuitous contracts, the obligation of one party to provide something (property, property right, service) to the other party arises without the right to demand payment or other performance from it. Examples of gratuitous agreements can be a gift agreement, an agreement for gratuitous use, and a storage agreement (under certain conditions).

Any civil law contract is assumed to be compensated, unless the contrary follows from the contract itself, the law or other legal acts - this is the so-called presumption of compensation.

How to draw up an agreement for the exchange of shares in an apartment?

Each participant acts both as a seller and as a buyer. The document reflects:

personal and passport information of premises owners;
size of the share in ownership (in numbers and in words);
the size of the total and living area of the premises;
assessment of the share by BTI specialists;
conclusion of a certified appraiser of the market value of the share;
passport details of persons who live in the premises;
technical characteristics of the object of the agreement, according to the title documents;
an indication that the shares are equal (or the size of the difference and the timing of its payment to the party whose property is valued higher are determined);
legal grounds for ownership, use and disposal of shares and transfer of ownership from the previous owner;
deeds of transfer of the parties

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Termination of the contract by agreement of the parties or initiative of one of the parties

It often happens in life that counterparties decide to terminate a concluded agreement (contract, provision of services, supply, etc.). This happens for various reasons: due to violations of the terms of the contract by the other party, dissatisfaction with the quality of the performance provided by the other party, deadlines for performance, in connection with concluding an agreement with a new partner, or for objective reasons (for example, when life circumstances change). Termination of a contract is one of the topics that gives rise to an inexhaustible variety of practical situations. We will try to understand the most common situations in this article. We will also talk about the grounds and procedure for terminating the contract.

Methods for terminating the contract

To begin with, it should be noted that there are 3 ways to terminate the contract:

by agreement of the parties
unilaterally (at the request of one of the parties)
judicially

Termination of the contract by agreement of the parties

This method of terminating a contract is the simplest option for terminating a contract when both parties agree to terminate contractual obligations and there are no disputes regarding mutual settlements or other issues related to terminating the contract.

To terminate a contract by agreement of the parties, you need to draw up and sign a termination agreement. The main thing is to clearly and unambiguously indicate in it that the contract is being terminated.

If you only offer the counterparty to terminate the contract, sign and send him 2 copies of the agreement and ask him to return one of them with his signature. Please indicate in your cover letter that this letter and termination agreement do not constitute a waiver of the contract if you have the right to unilaterally rescind. This is necessary if you do not want to terminate the contract unilaterally (for example, if the contract proposed for termination provides for a penalty for early termination of the contract in case of unilateral refusal).

The termination agreement must be signed by authorized persons (the party to the agreement, a legal representative, a person acting without a power of attorney from a legal entity, or a representative under a power of attorney containing the appropriate powers and duly executed). To terminate a multilateral agreement, the consent of not all parties, but the majority, may be sufficient, if this is allowed by the business agreement and is not prohibited by law (Clause 1 of Article 450 of the Civil Code of the Russian Federation).

To terminate a contract in favor of a third party, it is necessary to additionally obtain the consent of the third party, unless otherwise provided by law, other legal acts or the contract.

Often in practice the question arises: in what form should the termination agreement be drawn up? As a general rule, draw up the agreement in the same form as the contract. As a rule, this is one document in simple written form that is signed by both parties to the contract. If the contract is notarized (for example, an annuity contract), the agreement to terminate it must also be notarized.

If a registered contract is terminated, submit the agreement to the authorized body (for example, Rosreestr) so that information about the termination of the contract becomes known to third parties and you can enter into a new contract or realize other interests.

Before drawing up an agreement, we recommend reconciling mutual settlements. The reconciliation report can be made an annex to the agreement.

How to draw up a termination agreement?

Please include the following information in the termination agreement:

information about the contract being terminated: its name, date, number (required)
name and details of the parties signing the agreement, signatures of the parties (required)
an indication that the contract is being terminated, made in a clear and unambiguous form - for example, “the parties have agreed to terminate the contract …” (required)
the moment from which the contract is considered terminated, or the date of the agreement (required). As a general rule, rights and obligations are considered terminated from the moment the agreement to terminate the contract is concluded. However, you can agree on a different termination point (for example, 10 days from signing the agreement). Regarding the possibility of terminating a contract retroactively, there are several positions of the courts: formally there is no prohibition in the law, but a number of judges believe that when the contract is terminated, the relations of the parties are terminated for the future and do not affect the rights and obligations of the parties that existed before.
the state of the obligations of the parties, conditions for the return of what was performed under the contract, sanctions for violating the return period (recommended). For example, an unearned advance or property transferred for the execution of a contract. This is important if the obligations are not fulfilled to the same extent and otherwise is not agreed in the contract. Indicate the amount or list of property, the period and procedure for return.

If the contract was registered with Rosreestr, it will terminate:

for the parties - from the moment of conclusion of the agreement on termination of the contract or from the date specified in such agreement
for third parties - from the moment of making an entry in the Unified State Register about this

Termination of the contract unilaterally

In order for a party to a contract to terminate it unilaterally, it must have grounds for doing so. Such grounds are provided for by law or other legal act (for example, the law provides for the right to unilaterally refuse a contract for the provision of services, the shareholder’s refusal of the DDU in certain cases, etc.), as well as the concluded agreement (for example, the contract may provide for the right any of the parties or one party unilaterally withdraw from the contract without giving reasons or upon the occurrence of certain conditions, notifying the other party about this). At the same time, the law establishes restrictions on the inclusion of a condition for unilateral refusal in the contract if only one of the parties conducts business activities; in this case, the refusal can only be allowed to its counterparty (non-entrepreneur).

Please note how the grounds for refusal of the contract are formulated. Usually, the right to a reasoned refusal is allowed, which is associated with a violation of the contract by the counterparty or due to the occurrence of other circumstances. In this case, you can cancel the contract if the specified circumstances occur. But the refusal may not be due to anything (unmotivated refusal). In such a situation, you can refuse to fulfill the contract at any time without giving reasons.

If a party has grounds for unilateral refusal of the contract, it has the right to send the other party a notice of termination of the contract (unilateral refusal of the contract). In this case, the agreement will terminate from the moment the notification is received by the counterparty (the moment when it is delivered to the counterparty or is considered delivered according to the rules of Article 165.1 of the Civil Code of the Russian Federation) or another moment specified in the agreement or law in this case (in some cases, the moment of termination of the agreement is the time of sending the notification).

Therefore, when terminating a contract unilaterally, we recommend sending a notice by Russian Post by registered mail with a list of the attachments (in the list indicate “notice of unilateral refusal of the contract...” with the data of the contract being terminated) or handing it in against signature, but if the person who accepted the notice has the authority to receive documents (take a copy of the power of attorney).

Send the notice of termination to the correct address, otherwise the court may declare the termination of the contract invalid (notifications to legal entities and individual entrepreneurs are sent to the address specified in the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs, respectively, to individuals - to the known address of residence). Save the documents that confirm the fact of sending and delivery of the notice. In case of unilateral refusal of the contract, the party does not need to go to court to terminate the contract, including in the case of the need to enforce unequal performance (for example, when returning an unpaid advance).

How to draw up a notice to a counterparty about unilateral termination of a contract?

The form of notification is not established by law. We recommend that you include the following information in your notice:

a clearly and unambiguously formulated intention to unilaterally renounce the contract out of court. Otherwise, in the event of a dispute, the court may not recognize that the refusal has taken place and qualify your intention, for example, as an offer to terminate the contract by agreement of the parties
grounds for refusal of the contract if the refusal is motivated (violations of the counterparty)
a rule of law or a clause in a contract that gives you the right to withdraw from the contract
details of the agreement (name, date, number) and details of the parties to the agreement
requirement to return what was fulfilled (for example, an unpaid advance) or property that you transferred to fulfill the contract (for example, to a commission agent for sale), the deadline and method of return in accordance with the contract
demand to compensate for losses or pay penalties, if your refusal is motivated and by law or contract you have the right to demand this

A number of agreements (and in some cases the law) provide for a fine or a certain fee upon termination of the agreement, which must be taken into account when deciding on unjustified termination of the agreement. In this case, the condition in the agreement regarding payment for unilateral cancellation of the agreement will be valid if the following conditions are simultaneously present:

the contract is related to the fact that both you and the counterparty are engaged in business activities (if one of the parties is a consumer, then such a condition may be invalid)
unilateral refusal is unmotivated
the provision in the contract regarding the stipulated termination fee does not violate mandatory norms of law

Also, the courts do not charge a fee for refusal if its amount clearly does not correspond to the adverse consequences of the refusal that have occurred for the counterparty, and his behavior is dishonest. Or if in the contract you called this payment a penalty or a fine, these are sanctions for violating the contract, while your refusal is a legal action.

When unilaterally terminating a contract, the party to the contract who decides to terminate the contract must check:

does she have the right to unilaterally refuse the contract (according to law or contract)
the moment of termination of the contract in this case
deadlines for notifying the other party
additional conditions for such termination provided for in the legal acts or agreement

Termination of the contract in court

When terminating a contract in court, as in the case of unilateral refusal, the initiative to terminate the contract comes only from one of the parties. But in this case, the party must prove to the court the grounds provided for by law for terminating the contract in court. In this case, the contract will be considered terminated from the moment the court decision enters into legal force.

The following grounds can be identified for termination of a contract at the initiative of one of the parties in court:

material breach of contract by the other party. The breach may be said to be fundamental in law or contract. For example, the parties may agree that a supplier's failure to deliver by more than 20 business days constitutes a material breach. In this case, to terminate the contract, you need to prove that the counterparty supplier committed this violation. If the violation is not specified in the law or contract as a basis for termination, then it is necessary to prove to the court what the materiality of such violation is.
other violation provided for by a special law or agreement. For example, such violations of the lease agreement are provided for in paragraph 3 of Art. 611 and art. 620 Civil Code of the Russian Federation; Law No. 214-FZ provides for a number of grounds under which the shareholder has the right to terminate the DDU in court (not to be confused with the grounds for unilateral refusal). In this case, it is not necessary to prove whether the violation is significant; in this case, only the fact that the other party committed the intended violation is proven
the occurrence of other circumstances provided for by law or contract that are not related to the violation of the contract. For example, in the contract the parties may provide for such a basis as the counterparty changing the price unilaterally
significant change in circumstances (clause 1 of Article 451 of the Civil Code of the Russian Federation). There is little chance of terminating the contract on this basis, since it is very difficult to prove such a change.

To terminate a contract in court, it is necessary to apply to the court with a statement of claim, and as a claim it is necessary to indicate “terminate the contract” indicating the details of the contract, the parties to the contract and the grounds for termination.

Step-by-step instructions “Termination of a contract in court”

To terminate a contract through court you must:

Step 1. Send a claim to the defendant, a proposal to terminate the contract (indicating the grounds for termination of the contract

Step 2 . Determine the jurisdiction and jurisdiction of the dispute

Economic disputes between legal entities, individual entrepreneurs, and other disputes related to business activities are subject to the jurisdiction of arbitration courts. Other disputes are considered by courts of general jurisdiction.

Geographically, these disputes are subject to the jurisdiction of the court at the location of the defendant, unless other jurisdiction is established by the agreement. However, when determining jurisdiction, check to see if other rules apply in your case. This may be the case when:

The plaintiff chooses jurisdiction. For example, if the contract specifies the place of its performance, you can file a claim both at the location of the defendant and at the place of performance of the contract. And if the claim arises from the activities of a branch of a legal entity, then it can be filed at the location of the legal entity or branch
The law establishes exclusive jurisdiction. For example, if the defendant in a claim for termination of a contract is a carrier, then the claim should be filed with the arbitration court at the location of the carrier (Part 3 of Article 38 of the Arbitration Procedure Code of the Russian Federation).

Step 3. Collect documents confirming the legitimacy of your claim

In addition to the agreement and its annexes, it is necessary to collect documents confirming the grounds for termination of the agreement in court (named in the law or agreement, or the materiality of the violation of the terms of the agreement, etc.). Also collect documents confirming compliance with the pre-trial (claim) procedure.

Step 4. Draw up a statement of claim in compliance with the requirements of the law

Step 5. Calculate the state duty and pay it

The amount of the state fee depends on how many claims you are making and which ones. If you declare not only the termination of the contract, but also property claims (for example, recovery of losses, return of property), then calculate the state duty for each of the claims and add them up. In this case, the amount of the state duty is:

for termination of the contract - 6,000 rubles. (when filing with an arbitration court), 300 rubles (when filing with a court of general jurisdiction)
for collection of funds - based on the cost of the claim and jurisdiction

Step 6 . When filing a claim with the arbitration court, send a copy of the claim and documents to the defendant

Step 7. File a claim with documents attached to the court

You can file a claim through the court office or by sending it by mail or through an electronic system.

Consequences of termination of the contract

With the termination of the contract, the obligations of the parties, as a general rule, cease. You are no longer obligated to fulfill the contract and cannot demand this from the counterparty. However, obligations that, by virtue of the terms of the contract or their nature, imply their application even after termination of the contract or regulate relations after termination, continue to apply (for example, warranty obligations in relation to goods, agreement on jurisdiction, arbitration clause, obligation to pay for goods supplied, work performed, services rendered). services, the tenant's obligation to return the leased property).

As a rule, it is impossible to demand the return of what was performed under the contract. But if the performance was unequal, what was received unjustifiably must be returned, for example, an unearned advance.

Security obligations also terminate, but if the obligation does not terminate after termination of the contract or regulates the relations of the parties after termination, then the security for this obligation also remains (for example, the security continues to ensure the repayment of the loan).

You also have the right to demand compensation for losses if the termination of the contract was the result of a violation of obligations by the counterparty.

Need a trial lawyer? To assess the prospects for resolving a dispute and calculate the cost of services, call us at 8 (495) 223-48-91 or submit a request.

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How to draw up a car exchange agreement?

This type of agreement is concluded both between citizens and with the participation of enterprises and organizations. Vehicle prices may vary. In this case, the owner of the more expensive car is paid the difference in price. In the document, counterparties reflect:

installation and personal data;
locality and date of conclusion of the contract;
information confirming ownership (car passport and registration certificate);
technical characteristics and unit numbers (in accordance with the legal documentation);
an indication of the absence of encumbrances and restrictions that would prevent registration actions;
terms of termination of the transaction;
the amount of the price difference and the procedure for making additional payments (if necessary);
signatures of the parties to the agreement

Public and non-public contracts

This classification of contracts is based on the obligation of the person who has offered an offer to an indefinite number of persons to conclude an agreement with anyone who approaches him, without giving preference to anyone (Article 426 of the Civil Code of the Russian Federation). This cumbersome formulation hides very simple transactions that each of us constantly enters into in our lives: buying something at retail, traveling on public transport, consumer services, communication services, etc. The same public agreement is the User Agreement on our portal - we provide the opportunity to work in Regberry services on equal terms to everyone who wants to do this.

The essence of a public contract is that the party offering goods or services cannot do so on different terms for consumers of the same category. For example, if the price of a loaf of bread in a store is indicated as 25 rubles, then the seller cannot charge 20 rubles from one buyer and 30 rubles from another. He also cannot refuse to purchase from a specific consumer if the product is in stock or it is possible to provide a service. An exception to this rule can only be established by law or other legal act.

One party to a public contract, also called the obligated party, is a person engaged in entrepreneurial or other income-generating activities. Previously, Article 426 of the Civil Code of the Russian Federation referred to only a commercial organization as such an obligated person, which raised questions about whether the obligation to conclude a public agreement applies to individual entrepreneurs or non-profit organizations. Now these questions have been resolved.

In contrast to public contracts, there are contracts in which the parties agree on different conditions for different subjects. These are the usual contracts for business activities: supplies, contracts, services, leases and others.

What does notarization of an exchange agreement provide?

In most cases, the exchange is drawn up in a document of any form, which is signed by the owners of the property. There are a number of exceptions when the exchange is registered by a notary. This:

agreements with minors or persons who are not aware of their actions and cannot manage them;
real estate share exchange agreements

Agreements that require mandatory notarization and do not undergo this procedure are declared invalid. In this case, the participants are obliged to return the property to the previous owners or compensate it in cash.

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Preliminary and main agreements

According to Article 429 of the Civil Code of the Russian Federation, under a preliminary agreement, the parties undertake to conclude in the future another agreement ( the main one ) on the transfer of property, the provision of services, and the performance of work. The terms of the main contract are described in detail in the preliminary contract. The period by which the parties must conclude the main agreement is indicated, or, if the period is not specified, this must be done within a year from the date of conclusion of the preliminary agreement.

Preliminary agreements have not had the best reputation ever since they began to be used in fraudulent schemes in shared construction and, in general, in the sale of real estate. For example, in the case when an interesting apartment option “goes away” and the buyer does not have time to get a loan from the bank. Then the seller may offer to conclude a preliminary agreement with a promise to sell this particular apartment to this particular buyer.

The illusion of legality of purchasing housing arises due to the fact that the preliminary agreement contains all the essential terms of the main agreement, in particular, a detailed description of a specific property. Moreover, under such a preliminary agreement, they can also take a deposit from the buyer, although the seller does not have such rights in this case, because he does not sell the apartment, but only promises to do so in the future.

A preliminary agreement only makes it possible to require the other party to conclude the main agreement on the agreed terms, or, if she avoids concluding it, then force her to do so through the court. Moreover, you can contact the obligated party or the court only within the validity period of the preliminary agreement. And if, for example, the property specified in the preliminary contract has already been sold, then bona fide purchasers who had no idea about the seller’s promise are also involved in legal proceedings.

Preliminary agreements have practical value only for conscientious partners who really want to fix the existing obligations at this stage and intend to fulfill them. You could say it's something like a merchant's handshake. If the counterparty does not want to conclude the main agreement on the already agreed upon terms, then the confrontation with him may result in a real legal war, which, of course, does not in any way contribute to further fruitful cooperation.

When is it more profitable to conclude an exchange agreement?

In fact, a car enthusiast may encounter several situations when it is much more profitable for him to exchange his vehicle for a similar one rather than sell it:

If it is difficult for a car owner to sell his car. There may be several reasons for this, for example, if the car is rare, illiquid, not popular, or it’s simply not the season. In this case, the owner can exchange his vehicle for another, more popular car. If the main task of the car owner was to receive money, the final stage of this transaction is the sale of the car received under the exchange agreement.
The dealership has a trade-in program. In this case, the owner of the vehicle can exchange his car for a new or more recent car without having to sell it. To do this, just come to the car dealership and exchange your old car for a new one.
The third option is called - key to key. In this case, the owner of the vehicle exchanges his car for a similar car, without any additional payments. It is also possible to formalize the transfer of ownership of transport with an additional payment to one side or another of the transaction.
The consequence of this option is if the car owner does not have the opportunity to sell the car and then walk for a while. That is, he needs to sell one vehicle and immediately get behind the wheel of another.