The well-known proverb “measure seven times, cut once” is quite apt to the process of concluding business contracts. After all, the conditions fixed in such contracts will serve as the basis for the relationship between the parties and, of course, will accordingly influence their economic activities. One of the groups of contracts in such activities are contracts for the sale of property, the main of which are contracts of sale and delivery. Considering that the above-mentioned agreements apply to all participants in civil relations - both business entities and ordinary consumers - it seems interesting to consider some of the acute issues that arise for the parties when determining the content of such agreements.
Differences in the contract of sale and delivery
Although relations in the sphere of purchase and sale, supply and exchange are regulated by numerous legal acts of various legal force, practice has once again confirmed that everything is not in control. Nowadays, it is not uncommon to find in one document mixing in one document the features inherent in supply contracts with the characteristic features of a sales contract, and vice versa, or the interpretation by one party of the supply contract as a sales contract, etc. Of course, it is unlikely that the lack of a clear understanding of the essence of these contracts will be the result of their subsequent recognition as invalid, however, given the somewhat different legal regulation of supply and sale contracts, one should also keep in mind the peculiarities of the requirements of the legislation that are put forward to the parties when they determine the conditions (content ) of this or that agreement. It would be appropriate to mention here that the non-inclusion in the contract signed by the parties of conditions that are based on the requirements of the law does not relieve the parties from their implementation. Therefore, let us turn to the definition of these contracts by the Civil Code of Ukraine (hereinafter referred to as the Civil Code of Ukraine) and, on its basis, we will name the main distinguishing features of supply and sale contracts.
Yes, Art. 655 of the Civil Code of Ukraine defines a contract of sale as a contract according to which one party (seller) transfers or undertakes to transfer property (goods) to the ownership of the other party (buyer), and the buyer accepts or undertakes to accept property (goods) and pay a certain amount of money for it. amount. At the same time, under the supply agreement, the seller (supplier) engaged in entrepreneurial activity undertakes to transfer the goods into the ownership of the buyer within the established period (s) for use in entrepreneurial activity or for other purposes not related to personal, family, household or other such use, and the buyer undertakes to accept the goods and pay a certain amount of money for it (Article 712 of the Civil Code of Ukraine).
We draw conclusions from the following
- The contract of sale can be applied in any area not prohibited by law (satisfaction of personal needs, economic, scientific, cultural activities, etc.). In turn, the supply contract can be used only for economic activities or for other purposes not related to personal, household or other similar use. So, for example, the mention in the text of the contract of the (final) consumer allows us to define such a document as a supply contract. If the goods are purchased for the logistics of the counterparty's own employees, we are dealing with a sales contract;
- If all participants in civil relations can conclude sales contracts if they have the necessary legal capacity, then only a business entity can be a supplier in a supply contract, and in accordance with Part 3 of Art. 265 of the Economic Code of Ukraine (hereinafter referred to as the Civil Code of Ukraine), both parties to this agreement must be business entities;
- As a general rule, the subject of delivery is products for industrial purposes and consumer goods, defined by generic features (part 1 of article 266 of the Civil Code of Ukraine), while the subject of a sale and purchase agreement can be various types of property (in particular, goods, property rights ), not excluded from civil circulation. So, a part in the authorized capital, shares, shares can only be the subject of a purchase and sale agreement;
- If the contract of sale is concluded by the free will of the parties, then the supply can be carried out both at the discretion of the parties, and on the basis of a state order (for example, the purchase of goods, works and services for state needs).
As a result, we add that although the general provisions on the sale and purchase apply to the supply contract, unless otherwise established by the contract, law or follows from the nature of the relationship of the parties, these two types of contracts for the sale of property are related to each other as general and special.
Document language
Recall that the seller (supplier) must, simultaneously with the goods, transfer to the buyer its components and documents relating to the goods and are subject to transfer along with the goods in accordance with the contract or acts of civil law. Another interesting question is connected with this provision of the Civil Code of Ukraine: in what language should the following accompanying documents be drawn up, such as a technical passport, instructions for using goods, etc.
According to Art. 14 of the Law of Ukraine “On Protection of Consumer Rights”, the manufacturer of products, which may be the contractor or the seller himself, is obliged to inform the consumer, in particular, about the rules and conditions for the effective and safe use of products, data on the main properties of products, and storage conditions for products ( goods), the name and location of the manufacturer and the enterprise that performs its functions of accepting claims from the consumer, as well as carrying out repairs and maintenance, the expiration date (service life) of the goods, etc.
According to part 2 of this article, such data must be contained in the documentation attached to them, attached to the product, on the label, as well as in the labeling or in another way (in an accessible formal form) adopted for certain types of products or in certain areas of service. The accompanying documentation for products (goods) includes, in particular, technical passports, instructions, rules for the operation of products, which, in fact, as a whole can be covered by the concept of "technical documentation".
We add that the above information in accordance with the requirements of Art. 14 of this law must be provided to the consumer in accordance with the legislation on languages. The basis of legislation in this area is the current Law of the Ukrainian SSR “On Languages in the Ukrainian SSR”. Thus, according to Article 13 of this law, technical documentation in the Ukrainian SSR is prepared in Ukrainian or Russian. Based on the above, technical documentation for goods sold in Ukraine, written in any other language, will be subject to mandatory translation into Ukrainian (preferably), or into Russian.
Responsibility of the parties
One of the topical issues of analyzing contracts for the sale of property is also the definition of the responsibility of the parties. In general, here one should be guided by the rule according to which, if the amount of penalties is not determined by law, sanctions for violation of the terms of the contract are applied in the amount provided for by the business contract (part 4 of article 231 of the Civil Code of Ukraine). So, if the manufacturer (supplier) delivered goods of inadequate quality, the buyer (recipient) has the right to recover a fine from him, in accordance with Art. 231 of the Civil Code of Ukraine, in the amount of 20% of the cost of low-quality goods, unless a different amount is provided by law or contract. It should be noted that, in general, the current legislation places the decision on determining the responsibility of the parties at their discretion. However, it should be remembered that the law in relation to certain types of obligations may determine the amount of penalties, which cannot be changed by agreement of the parties.
By the way, in practice there are often cases of confusion of such types of penalties as fines and penalties. Therefore, it would not be superfluous to recall that the penalty, which is calculated as a percentage of the amount of the unfulfilled or improperly fulfilled obligation, is recognized as a fine, while the penalty is the penalty, which is calculated as a percentage of the amount of the untimely fulfilled monetary obligation for each day of delay in performance.
