To purchase real estate, citizens turn to a realtor, and to return it after an unsuccessful transaction, to a lawyer. Indeed, when concluding a real estate purchase and sale agreement, the parties do not always achieve the goals for which they entered into the transaction. More often serious problems arise for real estate sellers when they do not receive payment under the contract and at the same time are deprived of their rights to an apartment, house, dacha...

P O general rules civil legislation, the buyer is obliged to pay for the goods immediately before or after the seller transfers the goods to him, unless otherwise stipulated by law, or by the parties themselves. Payment under a real estate purchase and sale agreement is confirmed by: a receipt, a bank statement confirming the transfer of funds, a receipt confirming the deposit of funds into the cash register ( if the seller entity ) and so on. documents certifying the transfer of funds from the buyer to the seller. If the buyer does not pay for the real estate purchased under the contract, we can talk about a violation of the terms of the contract and the seller’s right to demand termination of the sales contract and the return of the property, provided that it was transferred under the contract.

In accordance with the provisions of the article of the Civil Code of the Russian Federation, amendment and termination of the contract are possible by agreement of the parties, unless otherwise provided by law or contract. If there is no agreement between the parties to the transaction, the contract may be terminated by the court at the request of one of the parties, but only if the following conditions are met:

• If there is a material breach of the contract by the other party;
• In other cases provided for by the Civil Code Russian Federation, other laws or agreement.

Particular attention should be paid to the wording: “A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is significantly deprived of what it had the right to count on when concluding the contract.”. If we assume that under a purchase and sale agreement the seller undertakes to transfer ownership of real estate to the buyer, and the buyer undertakes to accept it and pay for it the amount of money specified in the agreement, then the absence of payment under the agreement should be considered a violation of the buyer's fundamental duty.

In addition, the seller enters into a purchase and sale agreement with the expectation of receiving funds from the buyer, therefore, their failure to receive them entails such damage for him that he is largely deprived of what he had the right to count on when concluding the agreement. This means that the buyer has violated the obligation to pay must always be recognized as a fundamental breach of contract regardless of the fact of registration of the transfer of ownership under the transaction. In practice, it turns out that everything is not so simple. Courts, given the same initial data and the same requirements, make directly opposite decisions, often with reference to the same rules of law.

Most often, courts, when deciding to refuse to satisfy claims for termination of a real estate purchase and sale agreement, indicate in the judicial act: “if the buyer of real estate has registered the transfer of ownership, but has not made payment for the property, the seller, on the basis of clause 3 of Article 486 of the Civil Code of the Russian Federation, has the right to demand payment under the agreement and payment of interest in accordance with Article 395 of the Civil Code of the Russian Federation”. At the same time, the transfer of property to the buyer before receiving funds also turns out to be a circumstance that allows the courts to apply clause 4 of Art. 453 of the Civil Code of the Russian Federation, according to which the parties do not have the right to demand the return of what they performed under the obligation before the change or termination of the contract, unless otherwise established by law or agreement of the parties.

Despite the mention of these norms in the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. dated April 29, 2010 "About some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights" The courts were also given clarification on the issue of termination of a real estate purchase and sale agreement: “registration of the transfer of ownership to the buyer of the sold real estate is not an obstacle to termination of the contract on the grounds provided for in Article 450 of the Civil Code of the Russian Federation” and a reference is made to the right of the seller who has not received payment for it to demand the return of the property transferred to the buyer on the basis of Articles 1102, 1104 of the Civil Code of the Russian Federation. A judicial act on the return of real estate to the seller is the basis for state registration of termination of the buyer's ownership rights and state registration of ownership of this property of the seller.

Until the adoption of this Resolution, even if all the conditions necessary for termination of the transaction are present ( lack of payment, proven losses of the seller, actual non-transfer of property to the buyer) court decisions to terminate a real estate purchase and sale agreement were rare. At the moment, terminating a real estate purchase and sale agreement due to non-payment is a completely achievable legal goal.

Compliance with the procedure for terminating a contract provided for by law, clear formulation of claims and their competent justification is the key to success in a dispute with an unscrupulous buyer of real estate. Of course, non-payment for the actual transferred real estate is not the only basis for challenging the transaction. On other grounds for termination of contracts and on practical advice Read about their use on the pages of our Internet resource.

If you do not have an objective opportunity to take advantage of qualified legal assistance when selling an apartment, we recommend that you use the memo developed by the lawyers of our Bureau -.” The purpose of this memo is to provide all possible legal mechanisms to protect the interests of the seller of real estate from possible losses and other problems due to the buyer’s dishonesty.

To obtain legal assistance on issues related to transactions for the sale of real estate and termination of contracts for the sale and purchase of real estate, you can contact.

Lawyer Nadezhda Domkina

The subject of dispute in one of the cases considered by the Supreme Court of the Russian Federation was the question of whether the seller has the right to demand termination of the purchase and sale agreement if the buyer has not fulfilled the obligation to pay for the purchased property.

The seller, filing a lawsuit to terminate the contract, referred to the following circumstances. The parties entered into a purchase and sale agreement land plot and a residential building. The transfer of ownership to the buyer was registered in the prescribed manner, but the defendant did not fulfill his payment obligations, thereby significantly violating the terms of the contract.

The court of first instance granted the claim. He proceeded from the fact that as a result of the defendant’s long-term failure to fulfill his obligations to pay for the acquired real estate, the plaintiff was largely deprived of what he had the right to count on when concluding the contract. The court indicated that such a violation of the terms of the contract on the part of the defendant is significant and gives rise to the plaintiff’s right to demand termination of the purchase and sale agreement and the return of the property transferred to the defendant.

The appellate instance overturned the court's decision. The appeal found that the defendant's failure to fulfill his obligations to pay for the acquired property was not in itself a material breach of contract. In addition, the court of appeal, with reference to paragraph 3 of Art. 486 of the Civil Code of the Russian Federation indicated that failure to fulfill the obligation to pay for the goods sold does not give rise to the seller’s right to terminate the purchase and sale agreement, but only gives rise to his right to demand payment for the goods and payment of interest for the use of others in cash.

The Supreme Court of the Russian Federation recognized the conclusions of the appellate court as erroneous. Since in the case under consideration the seller did not receive any sum of money for the sold property, he, according to the RF Supreme Court, obviously lost what he had the right to count on when concluding the contract. Consequently, there is a significant violation of the contract, which is the basis for its termination (clause 2 of Article 450 of the Civil Code of the Russian Federation). The RF Supreme Court also noted that clause 3 of Art. 486 of the Civil Code of the Russian Federation, to which the appellate court referred, does not exclude the seller’s right to demand termination of the contract in connection with the buyer’s violation of the obligation to pay.

Let us note that earlier the RF Supreme Court expressed a different point of view on this issue. He proceeded from the fact that the buyer’s violation of the obligation to pay for the purchased property is not a significant violation of the purchase and sale agreement. Therefore, in the absence of a special indication in the law or contract about the seller’s right to demand termination of the contract and return of the property, the seller can only claim payment and interest for the use of other people’s money (see, for example, the definition of the insurance company according to civil cases RF Armed Forces dated 06/07/2011 N 5-B11-27).

The vast majority of settlements for real estate purchase and sale transactions are carried out by transferring funds through a safe deposit box with certain conditions for access to it. With other methods of carrying out the procedure, there are real risks that the seller will be left without money and without an apartment. How to avoid this?

When do you take risks?

Bleak results can await you in different situations. It is worth mentioning the most common of them. For example, the parties agreed to pay in cash after state registration of the contract, but the buyer did not fulfill this obligation. Or, when conducting an alternative transaction, the parties did not calculate everything possible options access to safe deposit box and, accordingly, they were not prescribed. In this case, funds for the residential premises can be received not by the seller, as expected, but by the buyer or third parties. Another risky option is to draw up a purchase and sale agreement, according to the terms of which the seller confirmed receipt of the money in advance, before the actual acceptance of the money, and this is reflected in the agreement. Most sellers mistakenly believe that if they do not receive money for their apartment, they will be able to return the premises. What are they wrong about?

The purchase and sale agreement for residential premises may be terminated and the apartment returned to the original owner at the initiative of one of the parties only in exceptional cases and only by court decision if there is a violation of the terms of the contract by the other party, which is determined by law or contract as significant, allowing the transaction to be terminated. Under other circumstances, the seller, left without money and without an apartment, cannot count on the return of the sold residential premises to his ownership - he only has the right to demand payment of funds not received from the transaction.

It is worth paying attention to the following points:

1. Special condition of the contract on its termination

Sometimes the seller and buyer include special conditions in the contract that establish the grounds for its termination at the request of one of the parties. The most common of them is non-payment of money for residential premises. It should be noted that the legislation of the Russian Federation does not contain provisions allowing for termination of a contract due to non-payment. And if the seller’s rights are not specified in the contract, the chances of returning the property if money is not received for it are very low.

Thus, from 2010 to mid-2012 in the Moscow region, more than 1,000 sellers who did not receive funds under the transaction went to court. Almost 700 applicants demanded the return of premises to their property, and only 50 claims were satisfied. Of the more than 300 legal disputes regarding the recovery of funds for a sold apartment, the majority of claims were satisfied.

2. Material violation of the terms of the purchase and sale agreement

According to some courts, including the Supreme Court of the Russian Federation, the fact of non-payment to the seller of the cost of the apartment in itself is not a significant violation of the terms of the contract, because the seller has the right to contact the buyer with a demand for collection of funds.

If the court is considering a claim for termination of a transaction due to non-payment, the degree of violation of the terms of the contract is subject to assessment. Courts pay attention to such points as the period during which the seller approached the buyer with a demand for payment of funds (whether the seller made this demand at all, immediately after registering the transaction or later long time, for example, year), social status parties to the contract (the amount of real estate the seller has, whether he has permanent place residence), other factors. What is characteristic is that it is in the Moscow region that courts, unlike courts in the periphery, and in contrast to the position of the Supreme Court of the Russian Federation, are more inclined to recognize non-payment of housing costs as a significant violation of the terms of the contract; accordingly, they are much more likely to terminate transactions on these grounds, returning apartments to the sellers.

3. The absence of a receipt cannot indicate non-payment of the contract

It is worth noting that the absence of a receipt for receipt of funds does not always indicate their non-receipt. The agreement, among other conditions, may reflect that “settlement between the parties was made in full before the signing of this agreement,” and after signing such an agreement, it is not possible to prove the opposite. Most courts, in the absence of a receipt, consider the corresponding clauses of the purchase and sale agreement with a direct indication of the payment made by the buyer of the property before signing the document to be confirmation of the fact of payment. For the court, this is sufficient written evidence of the fulfillment of financial obligations to the seller. Under such circumstances, the seller should present to the court indisputable documents confirming the absence of the fact of transfer of money for the apartment, which is practically impossible.

In conclusion, I would like to once again draw attention to the fact that the current legislation provides for the seller who has not received payment under the contract, the right to demand only the collection of money, but not the return of the transferred residential premises. Such a substantive restriction seriously affects the procedural position of the seller, which is the most important reason for a particularly careful attitude to the transaction.

Lawyer (“Legal Center of Lawyer Oleg Sukhov”), especially for GdeEtoDom.RU

In 2008 Supreme Court rejected the claim of the seller, who demanded to terminate the contract for the purchase and sale of an apartment, the cost of which the buyer had not paid. Ten years later, in a similar dispute, the position of the highest court changed to the opposite.

Is the contract more expensive than the apartment?

A citizen filed a claim in court to terminate the apartment purchase and sale agreement and return the property. The claim stated that the defendant undertook to pay the cost of the apartment after the state registration of the contract, but has not yet paid, and has avoided terminating the contract. The court of first instance granted the claim on the basis that the defendant’s failure to pay the cost of the apartment was a significant violation of the agreement concluded between the parties. Since the contract cannot be considered fulfilled, then according to paragraphs. 2 and 4 tbsp. 453 of the Civil Code of the Russian Federation, the apartment is subject to return to the ownership of the seller.

The Russian Supreme Court decided differently in 2008. He pointed out that if the buyer does not promptly pay for the goods transferred in accordance with the sales contract, the law does not provide for termination of the contract: according to clause 3 of Art. 486 of the Civil Code of the Russian Federation, the seller may demand payment for the goods and payment of interest for the use of other people's funds in accordance with Art. 395 of the Civil Code of the Russian Federation. The grounds and consequences of termination of the contract are named respectively in Art. 450 and paragraph 4 of Art. 453 Civil Code of the Russian Federation. At the same time, the possibility of the parties returning what was performed under the contract before its termination must be provided for by law or contract. However, the purchase and sale agreement concluded by the plaintiff and defendant does not stipulate such a situation.

The Supreme Court changed its mind

In 2017, the Supreme Court's position changed. The seller filed a lawsuit to terminate the contract for the sale and purchase of a land plot and a residential building. The transfer of ownership to the buyer was registered in the prescribed manner, but the defendant did not fulfill his payment obligations. In 2016, the district court satisfied the claims and terminated the contract.

The appellate court overturned this court decision, citing the same rules of law that were cited by the highest court in the 2008 proceedings. But this time the Supreme Court of the Russian Federation recognized the determination of the appeal as erroneous. In the case under consideration, the seller lost what he had the right to count on when concluding the purchase and sale agreement, having not received any money at all for the property sold. This is a significant violation of the contract and is the basis for its termination in accordance with paragraph 2 of Art. 450 Civil Code of the Russian Federation. The Supreme Court also noted that from the literal interpretation of the text of paragraph 3 of Art. 486 of the Civil Code of the Russian Federation does not mean that in the event of untimely payment by the buyer of the goods transferred in accordance with the purchase and sale agreement, the seller does not have the right to demand termination of the agreement.

As we see, the same norms of law can be interpreted by the court in different ways. It is also unclear whether the decision of the RF Supreme Court concerns only complete non-payment under the transaction or applies to cases of any non-payment. And will the new position become final?

Therefore, the sales agreement must provide in advance wording that excludes controversial situations. For example, stipulate that the seller has the right to unilaterally terminate the purchase and sale agreement and demand the return of the property if he does not receive the agreed price in full and within the time period established by the agreement. And of course, you need to contact a lawyer “before”, not “after”.

Also, the customer is obliged to terminate the contract if the goods, works, services do not meet the requirements of the technical specifications, the participant does not meet the requirements for persons, or they are provided with inaccurate information. Step 1. Make a decision. In this case, a special document is drawn up, which records who accepted it and on what grounds. Within 3 working days, the information is also posted in the Unified Information System (hereinafter referred to as the UIS) (Part.

Termination of a contract by agreement of the parties: consideration under Federal Law-44

So, the first case that should be mentioned is that mutual termination of the contract is possible if the supplier is unable to fulfill its obligations under the contact for reasons beyond its control (in other words, in cases of force majeure).

The second situation occurs when the customer no longer needs to supply goods.

Thirdly, when the contract cannot be performed due to force majeure circumstances.

Forum about government procurement and tenders Good-tender

and if the termination occurs by agreement of the parties, then it turns out that we post the information on a general basis? and if the termination occurs by agreement of the parties, then it turns out that we post the information on a general basis?

By agreement of the parties there is no delay in the entry into force of termination. signed - reported. within 3 working hours days in the register, within 7 in the report and within 1 working day.

How to terminate a contract under 44-FZ: conditions and risks

The contract cannot be partially terminated. This is confirmed by the Ministry of Economic Development of Russia in a letter dated January 16, 2019 No. D28i-130. If the goods are not delivered in full, the customer accepts and pays for the actual quantity delivered.

In 2019, by agreement of the parties, 534.2 thousand government contracts were terminated. This is 97.9% of all terminated contracts. If the parties terminated the contract by agreement, the supplier will not be included in the RNP.

not necessarily, but if the delivery was for an amount less than that stipulated in the contract and it is NOT NECESSARY to replenish it to 100% OF THE AMOUNT, then yes - it is advisable to close it for this smaller amount.

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Refusal by the contractor of a state (municipal) contract: grounds, procedure, consequences

The grounds for unilateral refusal to fulfill a supply contract are expressly provided for in Art.

At the same time, paragraph 3 of Art. 523 of the Civil Code of the Russian Federation provides for the right of the supplier to refuse the contract if the buyer (in our case, the customer) repeatedly violates the deadline for payment or sampling of goods. The grounds for unilateral refusal of the contract are also defined in other provisions of paragraph 3 of Chapter 30 of the Civil Code of the Russian Federation, paragraph 1 of Chapter 30 of the Civil Code of the Russian Federation on purchase and sale agreement, which apply to the supply agreement by virtue of clause.

Termination of the contract by agreement of the parties (h

These are force majeure circumstances (or otherwise - force majeure circumstances), namely: earthquakes, floods, snow drifts, riots, civil wars, strikes, etc.

etc. That is, everything that disrupts the normal operation of transport, equipment, communications, etc.

etc. and is characterized primarily by its extremeness (unusuality), falling out of the normal course of development, and, as a rule, is an unforeseen phenomenon, thereby preventing the timely delivery of goods.

Termination of a government contract under 44‑FZ

government contracts.

This is 97.9% of all terminated contracts. If the parties terminated the contract by agreement, the supplier will not be included in the register of unscrupulous suppliers (RPN).

But if it is not stated in the agreement,

“that the obligations of the parties are terminated, including in terms of liability”

, the customer will be able to collect penalties at any time until the deadline has expired limitation period(clause 1 of article 196 of the Civil Code)

Let us consider the grounds for termination of contracts for the supply of goods, performance of work and provision of services provided for by the current civil legislation for the executors of such contracts. The grounds for unilateral refusal to fulfill a supply contract are expressly provided for in Art.

523 Civil Code of the Russian Federation. The supplier has the right to unilaterally withdraw from the contract out of court in the event of a material breach of the contract by the other party.