It is known that the barter agreement is one of the oldest civil law contracts. Historically, it was the predecessor of the contract of sale and, therefore, the rules of sale and purchase are applicable to such a contract. Of course, if this does not contradict the norms of Chapter 31 of the Civil Code of the Russian Federation, which regulate the obligations arising from the agreement.

Now the use of contracts of this type is somewhat limited, but is still used. After all, when concluding an exchange agreement, time is significantly saved in cases where the desire of two persons to give one thing and acquire another completely coincides.

Concept, term and form of barter agreement

The main features of the barter agreement are:

• consensuality, that is, an agreement is concluded by the parties only on the basis of consent;
• reciprocity;
• retribution.

The subject of the exchange agreement is goods free from encumbrance. It is the subject of the contract that is the most important essential condition of the contract.

In the case where it follows from the contract that goods of unequal value are exchanged, the party transferring the goods whose price is lower is obliged to pay the difference in prices for these goods. Payment of the difference in prices is made before or immediately after the transfer of the goods that have a lower price. The contract may also provide for a different compensation procedure.

The transfer of ownership to the parties to the exchanged goods occurs simultaneously, after both parties have fulfilled their obligations to transfer the goods. The term of the contract is always determined by the parties themselves. In cases where the exchange of goods was not simultaneous and the terms of transfer do not coincide, fulfillment of the obligation within a different time period is considered a counter obligation. Therefore, the last executor has the right to refuse to fulfill the contract and demand compensation for losses. This occurs if the early performer fails to fulfill his obligations or there are circumstances indicating that the obligation will not be fulfilled.

An oral exchange agreement is possible only in two cases:

• if the agreement is concluded between citizens for an amount less than 10 minimum wages;
• between any subjects, if the contract is executed immediately upon its conclusion.

All other cases of concluding a contract require written form.

Rights and obligations of the parties to the barter agreement

The content of the obligation arising from the barter agreement is determined by the subject of this agreement, namely, that each party undertakes to transfer one product into the ownership of the other party in exchange for another. The distribution of rights and obligations between the parties to the barter agreement is determined in accordance with the rules on the purchase and sale agreement (which do not contradict the special rules on the barter agreement and the essence of barter, and therefore apply to this agreement), taking into account the fact that each of the parties to such an agreement is recognized as the seller of the goods , which she undertakes to transfer, and at the same time the buyer of the goods, which she undertakes to accept in exchange from the counterparty (clause 2 of Article 567 of the Civil Code).

As part of the fulfillment of the main obligation under the exchange agreement (transfer of the exchanged goods into the ownership of the counterparty), each of the parties must ensure the transfer of the corresponding goods within the period established by the agreement, and if such a period is not established by the agreement, in accordance with the rules for the fulfillment of an open-ended obligation (Article 314 GK). Unless otherwise provided by the exchange agreement, the accessories of the thing being transferred must be transferred along with the goods, as well as documents related to it (technical passport, quality certificate, etc.), provided for by law and the contract, simultaneously with the transfer of the thing.

The moment of fulfillment of the obligation to transfer the goods is determined by one of three options:

• the moment of delivery of the goods to the other party - if there is a provision in the contract regarding the obligation of the corresponding party to deliver the goods;
• the moment the goods are made available to the latter at the appropriate place - if, in accordance with the exchange agreement, the goods must be transferred to the counterparty at the location of the goods;
• the moment of delivery of the goods to the carrier or communication organization - in all other cases.

In the latter case, the date of fulfillment of the obligation must be recognized as the date of the corresponding document confirming the acceptance of the goods by the carrier or communication organization for delivery to the counterparty, or the date of the acceptance delivery document.

As a general rule, the date of fulfillment of the obligation to transfer the goods is determined by the moment the risk of accidental loss or accidental damage to the goods passes. However, unlike a purchase and sale agreement, fulfillment of the obligation to transfer the goods does not yet entail the transfer of ownership of the goods to the counterparty. This requires that the other party also fulfill its obligation to transfer the goods in exchange for the goods received by it.

More about products

If the object of exchange is goods defined by generic characteristics, when executing an exchange agreement, the quantity of goods to be transferred is important, which must be provided for in the agreement in the appropriate units of measurement or in monetary terms. It is also possible for the parties to agree in the contract only on the procedure for determining the quantity of goods (clause 1 of Article 465 of the Civil Code), which is important, since the quantity of goods refers to the essential terms of the barter agreement, not determined using dispositive norms, and its absence in the contract entails recognition of the latter as not concluded. In any case of determining the quantity of goods, the contract is considered concluded if its content allows the quantity of goods to be transferred to be determined at the time of execution of the contract.

The exchange agreement may stipulate that goods are subject to transfer in a certain ratio by type, model, size, color and other characteristics (assortment). Under such an agreement, the relevant party is obliged to transfer to the counterparty goods in the assortment agreed upon by the parties (Article 467 of the Civil Code).

The barter agreement may stipulate requirements for the quality of the goods being exchanged. In this case, the transferred goods must meet the specified requirements. In other cases, the goods transferred must be suitable for the purposes for which goods of this kind are usually used.

An exchange agreement may also include conditions regarding the completeness of the goods (or a set of goods), the requirements for containers and packaging of the goods being exchanged, etc. In these cases, the relevant provisions of the purchase and sale agreement will apply.

Failure to fulfill or improper fulfillment of the obligation to transfer the goods entails for the relevant party negative consequences provided for by the Civil Code both in relation to violations of certain terms of the purchase and sale agreement, and in the event of violation of any civil obligation. In particular, the counterparty has the right to demand compensation for losses caused (Article 15, 393 of the Civil Code). If, under an exchange agreement, an individually defined item was to be transferred, the counterparty (subject to the fulfillment of his obligation to transfer the goods) has the right to demand that this item be taken away from the party who has not fulfilled the obligation and its transfer on the terms stipulated by the agreement (Article 398 of the Civil Code).

The exchange agreement may provide for other consequences of non-fulfillment or improper fulfillment of the obligation to transfer the exchanged goods.

The party to the exchange agreement also bears the obligations provided for by the Civil Code in relation to the buyer under the purchase and sale agreement (with the exception, of course, of the obligation to pay for the goods exchanged).

More information about the transfer and receipt of goods

Each party to the barter agreement is obliged to accept the goods transferred to it. The only exceptions are those cases when the relevant party is endowed (in accordance with the rules on the purchase and sale agreement) with the right to demand replacement of the goods or refuse to fulfill the contract, for example, if the goods with defects that are significant are transferred to it.

Fulfilling the obligation to accept goods on time and in the manner stipulated by the contract means, in particular, that the relevant party must take all necessary actions to allow the counterparty to transfer the goods to it (provide the address to which the goods should be shipped; provide vehicles for transporting goods, if such an obligation arises from the contract, etc.).

The specific actions necessary to ensure the transfer and receipt of the relevant goods, in the case where the exchange agreement does not provide for the procedure for accepting the exchanged goods, are predetermined by the method of transfer of these goods established by the parties. If the contract stipulates that the goods are transferred by handing them over to the counterparty or the person specified by him (upon delivery of the goods), the counterparty must ensure that the goods are accepted within the period stipulated by the contract by the relevant authorized representatives. In cases where, according to the terms of the exchange agreement, the goods must be transferred at the location of the goods (“pickup”), the counterparty must ensure the allocation of its representative, and, if necessary, a vehicle, to accept the goods and remove them.

In other cases, when the exchange agreement does not provide for the delivery of goods or its acceptance at the location of the transferring party and the transfer of the goods is carried out by handing it over to a transport organization or communication organization, the actions of the relevant party to accept the goods consist of its acceptance, respectively, from the carrier or communication organization. Such acceptance must be carried out in compliance with all requirements stipulated by transport legislation and legislation on services provided by communications organizations.

Failure to fulfill or improper fulfillment of obligations to accept goods or refusal to accept the goods provided for in the exchange agreement entails negative consequences for the relevant party. Its counterparty receives the right to demand that the buyer accept the goods forcibly by filing a corresponding claim in court. In this case, the rights of the party transferring the goods can also be ensured by collecting from the counterparty the cost of the goods and expenses associated with its storage.

Failure to accept the transferred goods may serve as grounds for refusal to fulfill the contract, which entails termination of the exchange agreement. Regardless of the chosen method of protection from illegal actions of the party evading acceptance of the goods, its counterparty retains the right to demand compensation for losses caused by non-fulfillment or improper fulfillment of obligations to accept the goods.

Parties to the exchange agreement

The legislation does not indicate any special requirements for the subjects of the exchange agreement. But since the transfer of a thing by one person to another in exchange for another thing is a form of disposal of property, then each of the parties must be the owner of the things being exchanged. Or have another property right, including the right to dispose of the relevant property.

Subjects can be both individuals and legal entities: for example, state or municipal enterprises. In such cases, the legal entity also transfers its rights, namely, the right to manage and the right to conduct business. It should be noted that legal entities can enter into an exchange agreement not only with other legal entities, but also with individuals.

Main sections of barter agreements

The number and name of sections of the agreement entirely depend on the subject of the agreement. Thus, in a land exchange agreement the following sections are required:

• subject of the contract;
• encumbrances of the exchanged plots;
• restrictions on the use of exchanged plots;
• rights and obligations of the parties;
• liability of the parties;
• final provisions;
• addresses and bank details of the parties.

To ensure that the contract is drawn up correctly and competently, it is best to use a template to fill out. As with any other agreement, the time and place of conclusion and the passport details of the parties are indicated. To complete the agreement, both parties must sign. Also, the documents necessary in each individual case must be attached to the contract.

Is the barter agreement consensual or real?

The classification of contracts into consensual and real is based on the moment of emergence of rights and obligations. A consensual agreement is concluded if the parties have agreed on all the main terms and the agreement itself has been drawn up in the prescribed form. But a real contract also requires at least one of the parties to perform the action of transferring the thing.

Based on this classification, we can say that an exchange agreement is consensual if, immediately after signing the agreement, the parties have obligations to transfer property. The text of the contract may specify the period within which the exchange must be completed. Sometimes the deadlines for the parties do not coincide. The order of transfer is also displayed in the text, this is especially true for unequal exchanges, where there is a surcharge factor.

Contents and essential conditions

An essential condition of an exchange agreement is the subject of the agreement, i.e., the type of goods that will be exchanged. Without indicating the name of the exchanged items in the document, the contract cannot be recognized as officially concluded.

It should be noted that the exchange agreement provides for the equality of both parties - the seller and the buyer. At the same time, the parties also have equal responsibilities before the law. Persons entering into an agreement transfer goods to each other that have equal value. They must also spend the same amount of money on transferring and receiving ownership of the goods.

If one of the parties receives a product with a defect or other defects, then the other party to the contract becomes liable, similar to that provided for in the sale and purchase.

If the goods received under an exchange agreement are withdrawn by a third party, the injured party has the right to demand that the other party return the goods received during the exchange and compensate for losses (Article 571 of the Civil Code of the Russian Federation).

Barter agreement of equal and unequal value

It is difficult to find two apartments with the same price. This option occurs only in cases where the owners offer apartments of the same size, with the same layout and in a similar condition. But the formation of the price is also influenced by many additional factors: distance from the metro, the prestige of the area in which it is located, the presence of mortgage obligations.

If, nevertheless, the owners have agreed on the same price for both apartments, then it is considered that the exchange agreement is equivalent, and additional obligations for additional payment do not arise. Both parties have the same scope of rights and obligations: to transfer the apartment they own and to accept the counterparty’s apartment.

Otherwise, one of the parties has an additional obligation to make an additional payment. And here it is necessary to clearly state all the deadlines for fulfilling obligations for both parties.

Price formation

It is not at all necessary to indicate the price in the exchange agreement, but it may be necessary in order to correctly carry out accounting and thus avoid problems with the tax service. The value of goods for exchange is usually assessed in two ways. An internal assessment can be used, without the involvement of third parties and made on the basis of accounting data, the cost of acquisition, as well as the cost of identical items.

An independent assessment is also used, which is carried out by appraisers, guided by the data of the contract or other executive and judicial acts.

Barter agreement: taxation

In accordance with Article 658 of the Civil Code of the Russian Federation, if goods of equal value are exchanged, the exchange agreement is not subject to taxation. If the parties agree to exchange unequal goods and one of the parties pays monetary compensation, this amount is considered income and tax must be paid on it. It is 5% of the difference in the cost of the goods.

In order not to pay taxes legally, the amount of compensation must be included in the deduction (Article 220 of the Tax Code of the Russian Federation). In addition, when preparing documents, the parties need to pay a state fee. Its value directly depends on the type and subject of the contract.

Types and features of barter contracts

There are a number of existing classifications of barter contracts: their difference lies only in the principle in accordance with which the division occurs. Thus, the types of contracts united by the type of goods exchanged are distinguished. Legal entities and individuals can freely exchange:

• transport;
• other types of movable property;
• private buildings, residential and non-residential;
• apartments, rooms that are privately owned;
• land plots.

It turns out that the parties are exchanging not just some thing, but the ownership of it. Barter relationships can be entered into;

• individuals;
• legal entities, i.e. various organizations;
• legal entities and individuals (such an agreement is called mixed).

A common type of exchange agreement is the so-called barter. This is a contract for the exchange of goods, most often used in foreign trade. The peculiarity of such agreements is that in order to conclude it, the parties need an appropriate license, and the goods exchanged must necessarily be of equal value. The conduct of barter transactions is regulated by Decree of the President of the Russian Federation of August 18, 1996 No. 1209 “On state regulation of foreign trade barter transactions”, Chapter 10 of the Federal Law No. 164-FZ of December 8, 2003 “On the fundamentals of state regulation of foreign trade activities.”

Agreements on the alienation of real estate (donation, purchase and sale, exchange)

Under a real estate purchase and sale agreement (real estate sale agreement), the seller undertakes to transfer ownership of a land plot, building, structure, apartment or other real estate to the buyer, and the buyer undertakes to accept it and pay a certain amount of money for it.

Under a real estate exchange agreement, each party undertakes to transfer any property into the ownership of the other party, and real estate must be the subject of transfer by at least one of the parties.

Under a gift agreement, the donor transfers or undertakes to transfer the ownership of real estate to the donee free of charge.

In notarial practice, transactions with housing are most often carried out: residential buildings, apartments, rooms in apartments. A special piece of real estate is an apartment in an apartment building. A distinctive feature of such an apartment is that its owner, along with the premises occupied as an apartment, also owns a share in the ownership of the common property of the house: common premises of the house, load-bearing structures of the house, mechanical, electrical, sanitary and other equipment for outside or inside an apartment, serving more than one apartment. The owner of an apartment does not have the right to alienate his share in the ownership of the common property of a residential building, as well as perform other actions entailing the transfer of this share separately from the ownership of the apartment.

A contract for the purchase and sale of real estate acquired by spouses during marriage and which is the common joint property of the spouses is certified with the consent of the spouse of the seller of the real estate for the sale (exchange) of this property. In accordance with paragraph 3 of Art. 35 IC such consent must be notarized. If such consent is absent or the form of its expression is violated, the transaction may be declared invalid. The consent of a spouse is not required for the sale of real estate that is separate property of the spouses. To the property of each spouse in accordance with Art. 256 of the Civil Code includes property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift or by inheritance. Article 36 of the Family Code adds another type of basis for the emergence of separate ownership of spouses for property acquired at least during the marriage: receipt by one of the spouses of property under other gratuitous transactions. The most common type of gratuitous transactions currently is the transfer of residential premises into the ownership of one of them as a result of privatization. There is no need for the spouse's consent to the sale of real estate acquired during the marriage with joint funds, if in relation to this property the spouses entered into a marriage contract, in accordance with which the legal regime of this property has changed and a regime has been established that is different from the regime of common joint property. Moreover, if the marriage contract establishes the separate ownership of one of the spouses for property that is currently the object of alienation, then any consent of the second spouse is not required to complete the transaction. If one of the spouses alienates a share in the right of common ownership of property in respect of which the marriage contract establishes common shared ownership of this property, the spouse’s consent to the alienation of the share is also not required, however, the transaction for the alienation of property is drawn up in compliance with the requirements of Art. 250 of the Civil Code on the pre-emptive right to purchase the co-owner of the alienated share. In the event that the legal regime of the spouses' property is changed by a marriage contract, a copy of this contract or a corresponding extract from it must be left in the notary's files. If, as evidence confirming the ownership of the alienated real estate, the notary is presented with documents from which it is impossible to establish the grounds or time of acquisition of the property (for example, a registration certificate), the notary, as a general rule, must seek the consent of the second spouse for the alienation of such property. If the owner of the property claims that the ownership of the property belongs to him alone, he must confirm his statement with some additional document that indisputably testifies to the specified circumstances. For example, in relation to apartments that were previously located in housing cooperative buildings, for which citizens subsequently acquired ownership rights by force of law, such an additional document may be a certificate from a housing construction cooperative containing information that the entire amount of share savings was contributed by the owner of the apartment before joining marriage. Obtaining notarized consent to complete a transaction is necessary not only from the spouse of the person carrying out the alienation of real estate, but also from the spouse of the buyer (or the person to whom the property is transferred under an exchange agreement). This requirement is also contained in paragraph 3 of Art. 35 of the SK, and it is easily explained: after all, the money with which real estate is purchased is also the common joint property of the spouses, and therefore its disposal must be made by mutual consent of the spouses. This legal requirement does not apply to the donee’s spouse due to the fact that the donee’s property is transferred into ownership free of charge. When certifying an agreement on behalf of a person who does not have a spouse (single, widowed), a corresponding written application from the person alienating the property is submitted to the notary. The contents of the application are communicated to the purchaser of the property, who, in confirmation that he is aware of this circumstance, signs the said application.

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In accordance with Art. 250 of the Civil Code, when one of the co-owners sells a share in the right of common ownership to an outsider, the remaining participants in shared ownership have the preemptive right to purchase the sold share at the price for which it is sold and on other equal conditions, except in cases of sale at public auction. The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it. If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the ownership of real estate within a month, the seller has the right to sell his share to any person. When executing a transaction for the sale of a share in the right of common ownership of real estate, the notary must ensure that this requirement is met. Evidence of notification of participants in common shared ownership of the upcoming sale of a share in common ownership of real estate can serve as a certificate of transfer of the seller’s application in accordance with Art. 86 Fundamentals of the legislation of the Russian Federation on notaries or statements of the remaining participants in the common property about refusal to exercise the pre-emptive right to purchase the share being sold. A similar rule in accordance with paragraph 5 of Art. 250 of the Civil Code also applies when concluding an agreement for the exchange of a share in the right of common ownership of any property or property right. As a rule, co-owners of the person alienating their share voluntarily submit to the notary a statement of waiver of the right of preemptive acquisition of this share. Cases arise when obtaining such consent becomes difficult: the co-owner of the seller of the alienated share in the right of common ownership of the property avoids appearing before the notary to sign the relevant document. In this case, it is possible to formalize the transfer of a statement to him, which the seller officially uses. These rules on the pre-emptive right to acquire a share in common property do not apply to agreements on the donation of a share in common shared ownership of an apartment.

Transactions related to the alienation or acquisition of real estate of minors under fourteen years of age can be made with the consent of their legal representatives; real estate transactions on behalf of minors are executed by their legal representatives. According to the law, it is impossible to sell an apartment belonging to a minor citizen, for whom his mother acts, to the mother’s parents or other close relatives. Donation of real estate on behalf of minor children under fourteen years of age and citizens declared incompetent, in accordance with Art. 575 of the Civil Code is prohibited.

The contract for the sale of real estate must stipulate the price of this property. The price in a real estate sale agreement is one of its essential terms. If the contract does not contain a condition agreed in writing on the price of the real estate, the contract for its sale is considered not concluded. The procedure for paying the purchase price is determined by agreement of the parties. At the request of the parties to the transaction, the amount due for payment can be transferred to the seller before signing the contract or after its signing, as well as before the transfer of real estate or after its transfer. In the case where payment for the sold real estate is made by the parties after the transfer of the real estate to the buyer (sale on credit), the buyer must make payment within the period stipulated by the contract. Unless otherwise provided by the purchase and sale agreement, from the moment of transfer of real estate to the buyer and until payment, property sold on credit (in installments) is recognized as being pledged by the seller to ensure the buyer fulfills his obligation to pay for real estate (clause 5 of Art. 488 and paragraph 3 of Article 489 of the Civil Code), i.e. a lien arises by force of law. When drawing up an exchange agreement, the object of which is real estate, the amount of additional monetary payment made by either party for the property being exchanged may also be stipulated. Unless otherwise follows from the exchange agreement, the property to be exchanged is assumed to be of equal value. If, in accordance with the exchange agreement, the exchanged types of real estate are recognized as unequal, the party obligated to transfer property, the price of which is lower than the property provided in exchange, must pay the difference in prices before or after fulfilling its obligation to transfer the goods. The settlement procedure is similar to the settlement procedure for the sale of real estate.

In accordance with Art. 56 Fundamentals of the legislation of the Russian Federation on notaries, certification of contracts for the alienation of a residential building, apartment, dacha, garden house, garage, as well as a land plot is carried out at the location of the specified property. A contract for the exchange of real estate for movable property must be certified at the location of the real estate. An agreement to exchange real estate for other real estate can be certified at the location of any of the real estate objects subject to exchange independently.

The execution of various contracts for the alienation of real estate has certain features. In particular, the execution of a real estate purchase and sale agreement is regulated by Art. 556 Civil Code. The transfer of the sold property by the seller and its acceptance by the buyer must be formalized by a transfer deed or other document signed by both parties. Until the actual transfer of the sold real estate to the buyer and the signing of the transfer deed by the parties, the contract for the sale of real estate cannot be considered fulfilled. Moreover, the evasion of one of the parties from transferring property or signing a transfer deed is considered as a refusal to execute the purchase and sale agreement. The transfer deed must be drawn up in writing. The transfer deed can be drawn up by the parties directly when they sign the contract for the purchase and sale of real estate, as well as at any time after its signing, including after registration of the notarized agreement in a justice institution.

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The requirements for the need to draw up a transfer deed or other transfer document also apply to an exchange agreement, the subject of which is real estate, since, according to Art. 567 of the Civil Code, the rules on purchase and sale are applied to the exchange agreement accordingly. In this case, each of the parties is recognized as the seller of real estate, which it undertakes to transfer, and the buyer of other real estate, which it undertakes to accept in exchange. In accordance with Art. 585 of the Civil Code, in the case where the annuity agreement provides for the transfer of property against the payment of rent for a fee, the rules on purchase and sale apply to the relations of the parties regarding the transfer and payment of property. Therefore, in cases where real estate is transferred into the ownership of the rent payer for a fee, the execution of the contract must also be accompanied by the drawing up of a transfer deed or other document evidencing the transfer. For property donation agreements, the legislation provides for a different, more simplified procedure for their execution. The transfer of a gift (no exception is made for cases when real estate is transferred as a gift) is carried out through its delivery, symbolic transfer (handing over keys), etc.

Features of the exchange of living quarters

Houses, apartments and other residential premises can be exchanged between citizens who have ownership rights to specific housing. In the event that one of the owners does not agree to the exchange, the agreement is not recognized as valid. Tenants in state housing stock buildings can also exchange residential premises. But to conclude such a transaction, it is necessary to obtain the permission of all family members.

It is important to understand that in such cases it is not the ownership right that is transferred, but only the right to use. Legal entities also have the right to act as parties to housing exchange agreements (in this case, some rights related to economic management are also transferred). Mixed forms of barter contracts are also permitted.

Quite often, an exchange agreement covers up various kinds of illegal actions that can be aimed, for example, at tax evasion. This happens because the parties to the contract, by mutual agreement, independently establish the equivalence of the things being exchanged. So, some valuable thing can be exchanged for a bill of exchange issued by a commercial organization, which does not have any security. Therefore, if it is established that the barter agreement was concluded to cover up other relationships, it qualifies as a sham transaction.