An exchange agreement is ... How is an agreement for the exchange of an apartment, car or land plot drawn up

One of the most common transactions between citizens is an exchange agreement. It can be an exchange of real estate, and the exchange of some small items. Of course, such an agreement is also used between legal entities. The rules for the preparation and conclusion of this document are regulated by the civil legislation of Russia.

Difference from previous legislation

The Civil Code of the RSFSR, which was in force before the adoption of the current code, fit the exchange in just one article. In the new legislation, the barter agreement (of a car, real estate, other property) is regulated by five articles, new provisions have been added that were previously absent.

Thus, previously, legal relations arising as a result of barter were regulated by Article 255. It, in particular, stated that as a result of the agreement under discussion between its participants, some specific property is exchanged for another. The civil legislation of the RSFSR applied to me several rules governing the sale and purchase. A participant who entered into an agreement for the exchange of an apartment or something else was at the same time the seller of the item that he gave away and the buyer of the item that became his property. In addition, the circle of subjects of the agreement under consideration was significantly limited due to the fact that in situations in which the party (or both) were state organizations, it could be made only in cases directly established by the legislator.

concept

What is an exchange agreement? This definition is enshrined in Article 567 of the Civil Code. This concept includes the mutual obligations of the participants in this legal relationship, which consist in the transfer of certain property from one party to another in exchange for some other property. The word "other" is used twice in this definition. The first time it refers to the subjects of the contract, that is, to the participants, the second time - to the object.

In addition to the definition under consideration, the term "exchange of goods" is found in the regulatory act regulating the title of Article 502 as the title. This rule deals with only one of several possible outcomes that arise in the process of buying and selling non-food items.

The definition of an exchange agreement, established in the previous code, is different from the concept that defines this agreement now. Therefore, some assertions that the contract for the exchange of a land plot or some other object is traditional and complies with the old legislation are erroneous. The concept of an exchange agreement in this Civil Code is a novelty.

Change in housing relations

The exchange of property such as residential premises is a special kind of civil legal relationship. The contract for the exchange of an apartment or other real estate is regulated by the housing legislation of Russia. In practice, such an exchange is carried out with the help of specialized organizations, agencies, although it can be carried out without them. The norms of housing legislation provide that the tenant and persons living with him may exchange their dwelling for another belonging to another tenant. Such a procedure can also be carried out between members of housing cooperatives. At the same time, the right to such an exchange is not limited to the boundaries of any one locality, that is, the parties to the agreement can live in different cities, and the objects, respectively, can also be located in different areas. The procedure and rules under which a real estate exchange agreement is implemented are established in the Housing Code.

Misuse of the term

It is noteworthy that in modern Russia there are many so-called exchange offices that allegedly exchange various foreign currencies for Russian rubles. However, in fact, such operations are not an exchange, but are considered a sale and purchase. The only thing that can be attributed to me is the recently widespread practice of exchanging old banknotes of foreign currency for newer ones with the receipt of a certain amount for this operation.

Application of the rules on the sale

Although the chapter of the Civil Code devoted to and defining the contract for the exchange of real estate or movable property, it is established that certain rules on the sale and purchase can be applied to it, at the same time it is explained that such rules must not be in conflict with this chapter and in general with the essence exchange. For example, these include articles that involve payment for any product or product. It is known that exchange does not imply and is not accompanied by monetary settlements. The only exception is situations in which objects of property that differ in value are exchanged. Then, accordingly, a surcharge is made in the price.

commodity deal

The possibility of applying to me the rules governing the sale and purchase established by law is explained by the similarity of these legal relations. Exchange, like buying and selling, is considered a commodity transaction. However, its distribution is not so great. This is due to various difficulties both in the execution of the contract and in its execution. The definition of goods is also given by the legislator in civil law. It refers to any things, but not withdrawn from civil circulation. If an object falls under this definition, then it can be alienated. An example of when a share exchange agreement takes place is the situation between the Russian government and Menatep Bank, which occurred in 1996. Then the latter received a block of shares in several oil companies, and in return transferred to the government a share in the authorized capital of the organization.

Exchange agreement. Legislative regulation

You should be aware that, along with the provisions established in the article on the exchange agreement, separate rules on this legal relationship are established in the Civil Code in order to regulate other relations, including: the pre-emptive right to purchase, disposal of the property of the ward, grounds for acquiring property rights and some others. The provisions applicable to the contract in question are contained not only in the Civil Code, but also in other normative acts. Thus, according to the Law on Competition, it is forbidden to perform any actions, issue acts that will establish certain prohibitions on the exchange, purchase, sale of any goods from one region (territory, city, etc.) to another region.

barter deals

An example of another document regulating a contract for the exchange of goods may be a federal program for the development of exports, which was established by the government. According to this document, barter contracts concluded with foreign persons, under which excisable goods are exported abroad, are one of the measures of economic incentives. Under barter contracts, this means an exchange agreement, this name is often used in civil circulation, and even more so in the field of foreign trade.

The definition of such foreign trade operations in today's time is of considerable interest. The term of such legal relations is set forth in the Decree of the President of Russia, which is called "On State Regulation of Foreign Trade Barter Transactions". At the same time, an attentive person will immediately see significant differences from the concept proposed by the Civil Code. In accordance with the Decree, these transactions are understood as contracts concluded during the implementation of which provide for the exchange of goods, products, services and others of the same price. The regulatory document immediately emphasizes that if monetary settlements are used in the process of executing transactions, then such contracts and agreements will not be barter.

Essential terms of barter transactions

In this legal act, the objects of barter transactions are named in general terms. There is no such generalization and indication in the Civil Code. The presidential decree refers barter transactions to a bilateral barter agreement, at the same time it requires the definition in the contract of essential conditions, which include:

• the cost of each unit of goods, its quality, quantity and nomenclature, conditions and terms of import, export;
• list of services, works, results of intellectual activity, price, terms of performance, as well as the time of provision of such works or services, the moment of transfer of rights to the results of intellectual activity;
• a list of documents that will be transferred to the Russian side, on the basis of which the fact of the performance of services or works, rights to the results of intellectual activity will be confirmed.

The parties to the barter agreement in barter transactions are a Russian person and a foreign one.

Prices and costs

The Civil Code establishes dispositive rules that are of two kinds in relation to the expenses of the parties under the contract in question. In the first case, the norm of the law applies to the exchange of property that is identical in price, in the second case, the rules determine the costs of exchanging unequal goods.

The legislator assumes that the exchanged goods are of equal value. However, the agreement concluded between the parties may include a slightly different condition. The participants in the transaction have the right to deviate from the text of the law, including, for example, in the contract for the exchange of a land plot or other property, their decision on how the exchanged property will be transferred, how expenses will be reimbursed. At the same time, the law does not prohibit attributing the cost of registration of transportation prices to such expenses. This may also include the registration of an exchange agreement. In practice, when bartering between citizens, a variant is common in which the costs of receiving property that comes into ownership are borne by the party to whom it comes. Sometimes citizens share such costs in half.

Compensation for disequilibrium

In those situations where the exchanged goods are not of equal value, then, naturally, the participant receiving the more expensive thing is obliged to pay the difference to his counterparty. However, it should be noted that such an additional payment may not necessarily be made in cash. The parties have the right to establish in the contract other options for additional payment, a different procedure for compensation. For example, if a car exchange agreement is concluded for another vehicle, but more expensive, then the parties to the transaction may agree that the additional payment will be made in money, or they may agree on compensation, for example, auto parts or some other property.

Terms of exchange

The legislator does not establish any specific deadlines for the exchange of property. Including such conditions are absent and applicable to the simultaneous transfer of property by both parties. One party can transfer the goods today, the other after some time, determined by the agreement. At the same time, the rights of the party that transferred the property first are protected by law. In particular, the protection of the interests of such a party is regulated by the norm 328 of the Civil Code. This article describes the conditions under which the first party may stop the performance of its obligation or even refuse such performance, and in addition to everything else, also demand damages. Such conditions include the failure of the counterparty to fulfill the obligation, as well as all kinds of circumstances that may directly indicate the fact that such an obligation will not be fulfilled on time.

Property rights

An exchange agreement is one of the possible ones for an object, thing, etc. From the moment of the exchange of property, or rather, after both parties fulfill their obligations under the exchange agreement, the right of ownership of the received things comes. At the same time, the legislator gives the parties the opportunity to establish other conditions for determining the moment of transition and the emergence of this right.