Grounds and conditions for invalidity of transactions

In the legislation there is such term as " invalidity of the transaction". ее заключения достаточно полно описывают соответствующие нормы. The concept, types, conditions, consequences of its conclusion fully describe the relevant norms. It should be noted that the presence of this definition in the law gives greater focus and sharpness to the efforts of the courts in the fight against dishonest parties to the relationship. Consider further the conditions of invalidity of transactions (briefly).

Primary requirements

ее заключения, необходимо отметить ряд обстоятельств, которые выделяет судебная практика. Considering the invalidity of the transaction, the concept, types, conditions, consequences of its conclusion, it is necessary to note a number of circumstances that the judicial practice highlights. In case of non-observance of legislative requirements, the contract can be recognized as having no legal force. They include:

1. Competence of the participants.
2. Registration of the contract in the established form.
3. Voluntary expression of will.
4. Compliance with the content of the legislation.

Let's consider them separately.

Competence

For citizens, it comes from 18 years, and in some cases even earlier. выступает факт заключения ее недееспособными лицами. As the first condition of invalidity of transactions the fact of the conclusion by its incompetent persons acts. The legislation provides for another reservation. Thus, according to Article 177 of the Civil Code, a transaction concluded by an effective legal entity that, at the time of signing the contract, did not report to its actions and did not manage them. As for legal entities, their participation in agreements is determined by the content and nature of special and basic legal capacity. в этом случае выступает факт совершения их в противоречие с целями, установленными уставом организации. As a condition of invalidity of transactions in this case the fact of their fulfillment in a contradiction with the purposes established by the charter of the organization acts. This is stated in Article 173 of the Code.

Non-compliance with the form of the agreement

с определенными оговорками. This circumstance is included in the conditions of validity and invalidity of transactions with certain reservations. A specific form of the agreement may be established by law or by the parties themselves. Normative regulation is carried out in accordance with articles 165, 162 of the Code. If the legislation does not explicitly state invalidity of transactions due to the participants' failure to comply with the relevant forms, they will be deprived of the right to refer to testimony of witnesses in the event of disputes. However, they can provide written and other evidence.

The expression of will

It should be formed under normal conditions. Entry into certain relations is regarded as a volitional act. In it it is necessary to allocate two components. The first is the will (the subjective side), the second is the will (the objective aspect). Both of these elements are mandatory. Only with their totality can we talk about freedom of contract. If any component is missing, they speak of a vice of will. . This circumstance is considered as a condition of invalidity of transactions .

conclusions

The main conditions for the invalidity of transactions have been considered above . дел таково, что при допущении хотя бы одного нарушения договор теряет свою силу. The general state of affairs is such that, with the admission of at least one violation, the treaty loses its force. Accordingly, the results expected by the participants in the relationship are not achieved. , следует сказать, что закон запрещает исполнение договоров, потерявших силу. Considering the invalidity of the transaction, the concept, types, conditions , it should be said that the law prohibits the execution of contracts that have lost their force. At the same time, certain measures are envisaged for the norms. They are aimed at preventing the existence of relations that do not comply with the law, the impact on participants, the elimination of the consequences of invalid transactions.

Return of received

имеют большое практическое значение. Conditions of validity and invalidity of transactions are of great practical importance. A contract recognized as inadequate, loses its validity, as a rule, from the moment of conclusion. This means that everything that was received on it by each participant is subject to return, according to art. 1102 and 1103 of the Code. Here we must take into account the special nature of each transaction's invalidity condition. для возврата имущества – это не требования виндикационного иска. The grounds for the return of property are not claims of a vindication claim. They are exactly the violations that were committed when concluding the contract. Claims to recognize the invalidity of agreements have a special nature, because only through them there is a restoration of rights or discharge from obligations, or both. Of course, in the application this will not be the only requirement. The claim may also contain requests for the return of all executed, the recovery of moral damage, compensation for losses. Regardless of additional requirements, the terms of invalidity of transactions will be key. The provision of legislation governing this issue does not take into account the moment of good faith.

Nuances

, лицо, которое сберегло либо приобрело имущество, должно вернуть его другой стороне отношений. If there is any condition of invalidity of transactions , the person who has saved or purchased the property must return it to the other side of the relationship. The corresponding instruction establishes 1103 articles of the Code. Meanwhile, it does not apply to all cases of invalidity. In a number of situations, all the participants received will be collected in favor of the state. It is worth noting that different opinions are expressed in the literature on this matter. Most experts believe that this kind of recovery should be regarded as confiscation. Other authors believe that it appears as a new legal phenomenon. Still others believe that the seizure of wealth can be equated to a fine. , не содержат указания на возможность применения конфискации как меры воздействия на участников. Meanwhile, the rules regulating the concept, the terms of invalidity of the transaction , do not contain an indication of the possibility of using confiscation as a measure of influence on the participants. It has some similarities with recovery in favor of the state. However, confiscation is used in completely different cases and does not apply to invalidity of transactions. This measure can be applied to any property. The recovery in favor of the state applies only to those values that were the subject of the agreement and only if at least one participant fulfilled the obligations established in it.

The moment of termination

необходимо отдельно остановиться на особенностях результатов утраты договором его силы. Considering the conditions of invalidity of transactions and their types, it is necessary to separately dwell on the peculiarities of the results of the loss of the contract by its force. As was said above, relations are considered to be terminated at the time of the conclusion of the relevant agreement. However, this rule does not always work, even if there are conditions for invalidity of transactions. в ряде случаев признаются не имеющими силы на будущее время. Negligible and controversial transactions are in some cases recognized as invalid for the future. An example can be property rent. могут распространяться не только на весь договор в целом, но и на отдельную его часть, если предполагается, что оно было бы подписано без включения соответствующего пункта. It is worth saying that the conditions for the invalidity of transactions in civil law may extend not only to the entire treaty as a whole, but also to a separate part thereof, if it is supposed that it would be signed without the inclusion of a relevant clause. This is stated in 180 articles of the Code. For example, a court may recognize a testament as valid, except for the condition under which a citizen is included in the number of heirs that does not meet the requirements of the law established for successors. This may be, say, the killer of the owner.

Property consequences

If a contract concluded in violation of legislative requirements was not executed, then it is simply canceled. If the obligations under the invalid transaction were partially or completely repaid, the problem of property consequences arises. Its decision depends on the circumstances under which the agreement has lost its force, as well as the absence / intent of the participants. The legislation provides for three property consequences:

1. Bilateral restitution. It involves the return of the participants of the transaction to their original state.
2. Avoidance of restitution. In this situation, everything that is done is withdrawn from both sides in favor of the state.
3. Unilateral restitution. In this case, one participant returns everything that was executed, and the other party withdraws everything in favor of the state.

Bilateral restitution

In this case, a reciprocal return of all executed on the transaction in kind is carried out. In some cases, this prescription is impossible. In such situations, the value of the property is returned. As Article 167 of the Code indicates in paragraph 2, bilateral restitution is applicable in all cases where the conditions for invalidity of transactions take place . она предусмотрена для договоров, заключенных: In civil law, it is provided for contracts concluded:

1. In violation of form.
2. With non-compliance with the procedure for state registration.
3. With going beyond the scope of legal capacity or limitations of authority.
4. Inefficient or limitedly capable persons.
5. Underage, under 14 liters.
6. Persons who are not capable of realizing their actions or leading their own behavior.
7. Under the influence of delusion.

Participants return to the starting position because the executed was received illegally. Bilateral restitution takes place when the application of fines to participants is impossible, because they both acted inadvertently or innocently. In these cases, in the presence of any condition of invalidity of transactions, the Civil Code of the Russian Federation provides that persons who fulfilled their obligations can expect to return their property or compensate for its value.

Unilateral restitution

In this case, only one property - conscientious - participant will receive his property. The other party can not count on the return of the executed one. If, however, she did not pay off her obligations, then what is to be performed is collected in the state's income. Unilateral restitution applies to contracts concluded:

1. Under the influence of violence.
2. Under the influence of deception.
3. Under threat.
4. Under the influence of a malicious agreement, concluded by a representative of one party with another.
5. In difficult circumstances.
6. With a purpose that does not correspond to the basics of morality and law and order, if only one participant was guilty.

If the obligation is paid off by both parties, the unscrupulous counterparty must return to the other all that has been received. Moreover, everything is taken from him in favor of the state. If the unscrupulous counterparty has partially discharged the obligations, and the innocent subject is completely, all the received, as well as the unpaid part, are subject to recovery from the former. If both parties have partially implemented the terms of the transaction, then the withdrawal to the state's income is carried out in an amount equivalent to that received from the second participant.

Avoidance of restitution

Such a measure is provided for cases of recognition of the invalidity of a treaty concluded for a purpose that is contrary to the principles of morality and order. Having established the corresponding rule in Article 169 of the Code, the legislator was guided by the fact that the intent of the parties extends not only to the signing of the agreement, but also to its execution. Accordingly, if both parties acted with intent and both fulfilled their obligations, all that they received was transferred to the state's revenue. There are situations when one side has paid off the obligations completely, and the second - in part. In this case, everything received by the second participant is withdrawn in favor of the state, and what he had yet to fulfill. If the property was used and can not be returned in kind, its value is compensated.

Difficulty in practice

Among the many problems, the key issue is the consequences of void contracts. It often happens that the thing transferred under this agreement has already been sold to third parties. Accordingly, vindication in this situation is impossible. Legislation in this case limits restitution to monetary compensation. If the party that received the item is insolvent, then the subject of the transaction will be lost. The shallow external action of restitution, according to Article 167 of the Code, is that it does not concern subjective legal possibilities. The thing is to be returned not because the person had previously had any right to it, but because it was transferred. The result of these features is not only the high efficiency and effectiveness of restitution. It also shows its property of preliminary protection. For example, the situation is likely where the tenant sold the thing to an outside subject. Due to the fact that he did not have the right to this, under the rules of restitution, this property is returned to him. Subsequently, the landlord can demand the return of the thing, as well as compensation for damages caused. From this we can conclude that judicial practice treats restitution in an expanded manner. But this approach can not be called indisputable. This is due to a number of circumstances. This approach presupposes responsibility for the bona fide purchaser, and not for the person who violated the interests of the owner. This is inconsistent with the literal meaning of Article 167 of the Code, which says only about participants in a void transaction, and not about someone else.

Housing disputes

They also often have restitution problems. Housing disputes proceed, as a rule, under one scenario. The living space is alienated, then sold, exchanged, transferred to other people in a compensated way. If it is discovered that from the very beginning the transaction was illegal, then all subsequent ones will also become illegal. This situation is quite common in practice. On the one hand, insignificance in itself means that the original owner must be automatically restored regardless of the return of the premises. At the same time, the bona fide buyer is protected from vindication due to the restriction provided for in article 302. Before the courts there is, it seems, an unsolvable question. Refusing to satisfy the vindicative lawsuit, they should recognize as the illegal, but bona fide owner the right to withhold housing. At best, the situation is resolved by reaching a compromise - the original owner of the premises is recognized as the owner, and the subjects who have settled, can get the legal opportunity to use the object or become employers.

Economic disputes

Often, the claim is not subject to recognition of the invalidity of the agreement, but in the course of the proceedings, the fact of nullity is revealed. Such disputes with participation of tax bodies are rather widespread. The FTS, recognizing the nullity of the contracts of joint work of commercial enterprises concluded to evade taxes, apply financial sanctions to the parties. In the process of appealing against the relevant acts, plaintiffs are asked to apply bilateral restitution. As a result, the counterparties return to their original position. This causes the disappearance of the object of taxation - the turnover of products, services or works. Consequently, the grounds for imposition of tax sanctions are eliminated.

Additionally

Recently, practice has become quite widespread, when agreements are signed by deputy directors of executive structures of commercial enterprises or other officials, although they do not have the authority to do so. Often a stamp of a company is stamped on documents, and the transcript of the signature contains the name of the manager. Contractors rarely raise the issue of their invalidity. As a rule, this argument is left in case of disputes. Recognizing such a contract as invalid, the court must pay attention to the legal status of the entities that signed it. If they are listed in the constituent documents as legal entities, then their actions are qualified according to Article 174 of the Code. That is, they are considered as going beyond the scope of authority. If persons are not specified in the executive structures of the firm, then they must act in accordance with the power of attorney. If it is absent, the invalidity of the transaction is recognized on the basis of its conclusion by an unauthorized person. Often the responsibility of the guilty party is insignificant in comparison with the benefit that he could receive when concluding the agreement. Some experts propose to supplement the norms of legislation by indicating the admissibility of imposing a fine on such counterparty in the amount of the value of the transaction executed by the other party.