Determination of the law to be applied to obligations from unilateral transactions

What is a one-way transaction?

A unilateral transaction is an agreement in which only one party participates. That is, to complete this transaction, the will of one party is required.

Such agreements are regulated by paragraph 2 of Article 154, as well as Article 155 of the Civil Code of the Russian Federation. An example of a transaction is a will. Although there are other persons (participants) in this document, its conclusion requires the will of one testator. He must not give notice to potential heirs.

A unilateral transaction will have legal consequences only when it is executed in accordance with all laws. The document must not violate legal norms.

A unilateral transaction does not always imply that one person expresses his will.

The will of one party, which can be represented by several persons, is assumed. However, multiple parties to a transaction are not always allowed. It all depends on the regulations of the specific agreement. For example, a will can only be made by one person.

A unilateral transaction involves the emergence of obligations only on the party that entered into the agreement. However, the exception again is a will. In this case, persons receiving an inheritance may be required to transfer part of the property to third parties. For example, an heir inherited a car. He will receive it only if he transfers a fixed amount to an elderly relative. The basis for the transfer of obligations in a unilateral transaction is paragraph 1 of Article 1137 of the Civil Code of the Russian Federation.

ATTENTION! Unilateral transaction and unilaterally binding transaction are different terms. In the second case, obligations arise not from the person who entered into the agreement, but from third parties. The main and main difference between unilateral transactions and multilateral ones is that in the first case only one party takes part.

IMPORTANT! The general provisions of law regarding obligations and contracts apply to unilateral transactions.

Bilateral transaction examples

Depending on the number of parties involved in the transaction, transactions are divided into unilateral (clause 1 of Article 154 of the Civil Code of the Russian Federation) (the will of one party is sufficient) and two- or multilateral (it is necessary that the will is expressed by two or more persons and their will coincides). This division is based on the number of persons whose expression of will is necessary and sufficient to complete a transaction.

A unilateral transaction is considered to be a transaction for which, in accordance with the law, other legal acts or agreement of the parties, it is necessary and sufficient to express the will of one party.

Unilateral transactions have become widespread in economic activity. Unilateral transactions include: announcement of tenders in the form of an auction or competition, drawing up a bill of exchange, issuing a check, issuing a power of attorney, will, etc.

A unilateral transaction, like any other, must lead to the emergence, change or termination of rights and obligations. In accordance with this, unilateral transactions can be divided into law-generating, law-changing and law-terminating.

Law-generating unilateral transactions are transactions that serve to create civil legal relations. These include: a will, which creates rights and obligations after the opening of an inheritance (clause 5 of Article 1118 of the Civil Code); issuance of a power of attorney (clause 5 of Article 185 of the Civil Code); subsequent approval of the transaction (clause 2 of Article 183 of the Civil Code); offer - an offer to conclude an agreement addressed to one or more specific persons (clause 1 of Article 435 of the Civil Code); a public promise of a reward or monetary reward to someone who performs the lawful action specified in the advertisement within the period specified therein (clause 1 of Article 1055 of the Civil Code); announcement of a public competition (clause 1 of Article 1057 of the Civil Code); acceptance of inheritance by the heir (Article 1152 of the Civil Code), etc.

Law-altering unilateral transactions are, as a general rule, transactions that mediate the implementation of civil legal relations, that is, transactions related to the exercise of subjective civil rights and the performance of subjective duties by participants in civil legal relations. These include: transfer of property to fulfill an obligation; acceptance of debt by the creditor, choice by the debtor of a method of fulfilling an alternative obligation (Article 320 of the Civil Code); fulfillment of an obligation not fulfilled by the debtor by the creditor on its own at the expense of the debtor (Article 397 of the Civil Code); retention of things by the creditor (Article 359 of the Civil Code), etc.

Legally terminating unilateral transactions are transactions that entail the termination of legal relations as a whole or individual subjective civil rights and obligations. These include: refusal of a participant in common shared ownership of the right of first refusal (clause 2 of Article 250 of the Civil Code); Relinquishment of property rights (Article 236 of the Civil Code); waiver of the right to lifelong inheritable possession and permanent perpetual use of a land plot, which can be committed by a land user or landowner (clause 1 of article 45 and clause 3 of article 53 of the Land Code); unilateral refusal of the contract permitted by law or contract (clause 3 of Article 450 of the Civil Code); offset of a unilateral counterclaim, the due date of which has arrived or the due date of which is not specified or determined by the moment of demand (Article 410 of the Civil Code), etc.

When making each of these transactions, such as, for example, a power of attorney or a will, legal consequences arise immediately after one party (testator, principal) has expressed his will in the form required by law, aimed at the emergence of corresponding rights and obligations.

A one-sided transaction can be:

• a) unilaterally authorizing, giving rise to subjective rights in certain persons, such as, for example, the rights of an heir under a will;
• b) unilaterally binding, creating by force of law or agreement obligations for other persons, such as the obligations of a person under an agency agreement.

Rights under a unilateral transaction may arise both from the person making the transaction and from third parties in whose interest the transaction was completed. For example, from a power of attorney for representation, the representative has the right to complete a transaction on behalf of the represented person.

A unilateral transaction imposes certain obligations on the person who makes it in relation to the addressee of the transaction. Since a unilateral transaction requires the expression of the will of only one party, such a transaction can create obligations only for the person who made the transaction. However, there are exceptions to this rule. In accordance with Art. 155 of the Civil Code, a unilateral transaction may create obligations for other persons also in cases established by law. For example, the testator has the right to impose on the heir an obligation in favor of third parties (testamentary refusal, provided for in Article 1137 of the Civil Code). Unlike obligations, rights arising from a unilateral transaction can be granted to persons not participating in the transaction.

A bilateral transaction gives rise to a legal result only if there is an expression of the will of the two parties pursuing their own legal goals. In this case, each party can be represented by one or several entities. Thus, a purchase and sale always remains a bilateral transaction, despite the fact that several persons on the buyer’s side or several persons on the seller’s side may participate in its conclusion. In such cases, it is customary to talk about the plurality of persons constituting a party to the transaction. Therefore, the number of parties to a bilateral transaction should not be confused with the number of its participants.

The expression of will of the parties in a bilateral transaction must be mutual and coinciding. The reciprocal nature of expressions of will is due to the mutually satisfied interests of the parties. The coinciding nature of expressions of will means their mutual consistency and indicates the achievement of an agreement between the parties.

Due to the mutual agreement of the mutual expressions of will of the parties, a bilateral transaction as an agreement of the parties appears in civil circulation in the form of a single act of will. In the vast majority of cases, these single acts of will are contracts. However, in some cases they are not of a contractual nature. These include transactions involving the transfer of money by the debtor to the creditor under an obligation in kind (for example, the amount lost at cards).

Consequently, a contract is considered a transaction, the conclusion of which requires the expression of the agreed will of two parties (bilateral transaction) or three or more parties (multilateral transaction). An agreement arises as a result of interrelated unilateral transactions: an offer to conclude an agreement (offer) and acceptance of an offer (acceptance).

If in contracts the will of the parties is opposite in direction, then the rights and obligations are of a reciprocal nature. In this case, the content of the will as a result of coordination coincides in the act of joint expression of will. For example, a seller wants to sell an item at one price, and a buyer wants to buy it at another. As a result of coordinating opposing desires, the parties come to an agreement in which the item is purchased at a certain compromise price. Or, for example, a property rental transaction may take place if one party wants to use the thing, and the other wants to rent it out.

The will of the parties to contracts may be identical in direction. The expression of will is coincidental. In such transactions, all participants pursue common legal goals. For example, in a simple partnership agreement, the parties solve the same problem - to combine their contributions and act together to make a profit or achieve another goal that does not contradict the law (Article 1041 of the Civil Code) or, for example, such a transaction as a supply agreement can only be considered completed in the event that the parties agree on the name and quantity of the goods to be supplied.

To complete a multilateral transaction, the will of three or more parties is required (clause 3 of Article 154 of the Civil Code). In a multilateral transaction, a legal result arises when the will of more than two parties coincides (although in practice there are multilateral transactions with two parties). An example of a multilateral transaction is an agreement on joint activities (a simple partnership agreement), which can act as a means of achieving a common economic goal, for example, for the financing and construction of a tourist complex by several legal entities, etc. A type of multilateral transactions are constituent agreements on the creation of business partnerships and companies (clause 2 of article 52 of the Civil Code). These agreements are multilateral, since the number of founders is not limited by law.

The division of transactions into unilateral and bilateral or multilateral shows the validity of the statement: not every transaction is an agreement, but every agreement is a transaction.

Transactions are actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.

The concepts of transaction and contract are similar, but not identical. The concept of “agreement” is included in the concept of “transaction”.

The definition of a contract is given in Art. 420 Civil Code of the Russian Federation:

A contract is an agreement between two or more persons on the establishment, modification or termination of civil rights and obligations.

As can be seen from the definition, in order for an agreement to take place, the agreed expression of will of at least two parties is necessary, while the transaction can be unilateral in nature. When making a unilateral transaction, legal consequences occur for one party.

Unilateral transactions include, in particular, such actions as issuing a power of attorney, issuing a bank guarantee, drawing up a will, accepting an inheritance, renouncing an inheritance, a public promise of a reward, announcing a public competition, etc.

The regulatory role of the agreement brings it closer to the law and regulations.

as a legal fact is the totality of the conditions under which it is concluded. The content of the contract as an obligatory legal relationship consists of the rights and obligations of the parties.

Types of contracts:

1. aimed at transferring property into ownership, economic management or operational management (purchase and sale, delivery, exchange, donation, etc.);

2. having the purpose: to transfer property for temporary use (lease, agreement on free use of property, rental agreement for residential premises);

3. related to the performance of work (contracts, capital construction contracts, etc.);

4. related to the provision of services (transportation, commission, commission, storage),

5. credit and settlement agreements (loan agreement, loan agreements, bank deposit agreements, bank account agreements)

6. other contracts (insurance, joint activities, etc.).

The content of the contract is its terms and conditions. There are three groups of contract terms:

a) essential – conditions necessary and sufficient for the contract to be considered concluded and thereby capable of generating rights and obligations for its parties;

b) ordinary – conditions that are enshrined in the contract. Their absence does not affect the validity of the contract. If they do not exist, then the provisions of the law apply;

c) accidental - conditions that are not necessary for all contracts of a certain type in general, contain provisions agreed upon by the parties.

Agreeing on the essential terms means that the contract is concluded. It follows that in the absence of agreement on at least one of these conditions, the specified goal will not be achieved.

Signs of an essential condition:

1) for any contract, the condition regarding its subject matter is essential;

2) a condition that is named as such in the law or other legal acts is considered essential;

3) a condition that is necessary and sufficient for contracts of this type.

An agreement is considered concluded if an agreement is reached between the parties on all essential terms of the agreement.

Contract form

There are two main forms of agreement: oral and written (simple or notarial).

The following transactions must be made in simple written form (except for transactions requiring notarization):

• transactions of legal entities among themselves and with citizens;
• transactions between citizens for an amount exceeding 10 minimum wages (10,000 rubles);
• in cases provided for by law, other transactions, regardless of their amount and subjects (Article 161 of the Civil Code of the Russian Federation).

Failure to comply with a simple written form (if required), depending on the type of transaction, may entail the following consequences:

• as a general rule, unless otherwise expressly provided by law, if a legal dispute arises, the parties are deprived of the right to refer to witness testimony to confirm the transaction or its terms, but may provide other evidence;
• in cases directly provided for by law or agreement of the parties, a transaction made in violation of the mandatory written form is invalid (Article 162 of the Civil Code of the Russian Federation).

At the same time, the written form of the agreement does not necessarily imply the preparation of one document signed by the parties. An agreement will be considered concluded in proper form if the parties exchanged written documents via postal, telegraphic, electronic or other communication that allows one to reliably establish that the document comes from a party to the agreement.

Some agreements between business entities require a mandatory notarial form. Thus, pledge agreements and rent agreements are subject to mandatory notarization. The notarial form is also mandatory when the parties have established this by agreement, even if it is not required by law. Failure to comply with the notarial form also entails the invalidity of the transaction (Article 163 of the Civil Code of the Russian Federation).

For a number of agreements, the law establishes a requirement for their state registration. This requirement is provided for transactions with land and other real estate. The procedure for state registration is regulated by the Federal Law “On state registration of rights to real estate and transactions with it.” The rights and obligations of the parties arise from the moment of its state registration.

Classification of contracts

1. According to the moment at which their occurrence occurs, contracts can be real and consensual.

Real ones are considered perfect when two conditions are simultaneously met: a) there is an agreement made in the form required by law; b) the thing has been transferred.

Loan, storage, rental agreements, luggage transportation...

For consensual agreements, it is sufficient to fulfill one condition - reaching an agreement on all its essential terms.

Purchase and sale, lease agreement, delivery, commission...

2. Depending on the presence of a counter-property obligation, transaction agreements may be compensated or gratuitous. Compensation is characterized by the presence of a counter-property provision.

Purchase and sale, transportation, insurance, loan agreement

The gratuitous agreement does not imply this.

Donation, gratuitous provision of services, gratuitous use

3. According to the legal purpose (ground), they are divided into causal and abstract.

Causal (from the Latin causalis - causal) transactions always have a certain basis (cause) and are made for a specific purpose (buy a thing as property, rent it, etc.). If there is no basis, the causal transaction is invalid.

In abstract transactions, the basis is either completely absent or legally indifferent and does not affect their validity (for example, assignment is the transfer of ownership rights in a registered security by assigning a claim. In an assignment, the party making the assignment of the claim is responsible only for the validity of the rights transferred to the assignee, and not for their feasibility).

4. Based on the distribution of rights and obligations of the parties, all contracts are divided into unilateral (unilaterally binding) and mutual (bilaterally binding).

Conclusion of an agreement

Since a contract is an agreement, the will of its parties must coincide and be united. An agreement always consists of two components: a proposal from one party and its acceptance by the other party. An agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents through postal, telegraphic, teletype and other communications that make it possible to reliably establish that the document comes from a party to the agreement.

In particular, the written form will be observed if the written proposal to conclude an agreement is accepted in a certain manner provided for by the Civil Code of the Russian Federation, i.e. in the form of sending an offer and its acceptance.

An offer is an offer addressed to one or more persons to conclude an agreement. To be considered an offer, the offer must:

• be specific enough
• express the intention of the person who made the offer (offeror) to consider himself as having entered into an agreement with the addressee who will accept the offer (acceptor)
• contain all essential terms of the contract
• be done in the form required for the relevant contract

An offer can be addressed either to a specific person(s) or to an indefinite number of persons (public offer).

Depending on the form of the contract being concluded, the offer can be made orally or in writing (for example, by sending a letter outlining all the essential terms of the contract or a draft contract signed by the offeror). Whether a contract is concluded is decided only by the offeree. He can accept (accept) the offer, and then the contract will be considered concluded, or he can refuse it.

Acceptance is the response of the person to whom the offer is addressed regarding its acceptance. The following requirements are met for acceptance:

• acceptance must be complete and unconditional
• acceptance must be timely, i.e. if the offer specifies a period for acceptance, the contract is considered concluded provided that the acceptance is received by the offeror within this period
• acceptance must be made in a form appropriate to the contract being concluded.

Change and termination of the contract

The concluded agreement is binding on the parties, similar to the force of law. It creates an obligation that legally binds the parties. Neither party has the right to unilaterally refuse the agreement (with rare exceptions and only on grounds specifically provided for by law or agreement). Since a contract is an agreement of the parties, its modification or termination is possible, as a rule, only by agreement of the parties, which must be made in the same form as the contract itself.

At the request of one of the parties, the contract can be changed or terminated by a court decision only:

• in case of significant breach of contract by the other party
• in case of a significant change in the circumstances from which the parties proceeded when concluding the agreement
• in other cases provided for by law or agreement.

A demand to change or terminate the contract on the listed grounds can be filed by the other party in court only after the other party refuses to terminate or change the contract voluntarily.

Invalidity of transactions

Voidable and void transactions

The transaction is valid if the following conditions are simultaneously met:

1. Persons entering into a transaction are legally capable

2.The expression of the will of the parties must correspond to the actual will

3.The form of the transaction complies with the law

4.The content of the transaction does not contradict the law

(Article 166 of the Civil Code) divides all invalid transactions into two types - void and voidable.

A void transaction is invalid by virtue of the rule of law at the time of its completion. A void transaction is not enforceable. Any interested parties have the right to refer to the nullity of a transaction and demand in court the application of the consequences of its invalidity.

The court, having established during the consideration of the case the fact of a void transaction, states its invalidity and has the right to apply the consequences of the invalidity of a void transaction on its own initiative (Clause 2 of Article 166 of the Civil Code of the Russian Federation).

A voidable transaction at the time of its completion gives rise to the legal consequences inherent in a valid transaction, but they are unstable in nature, since at the request of a circle of persons exhaustively defined in the law, such a transaction may be declared invalid by the court on the grounds established by law. In this case, the legal result of the transaction may turn out to be completely annulled, since an invalid transaction is invalid from the moment of its completion, and the court’s decision on this issue will have retroactive effect, unless it follows from the content of the transaction that its effect can only be terminated for the future (clause 3 of Article 167 of the Civil Code of the Russian Federation ).

Thus, a voidable transaction is invalid due to its recognition as such by the court, and a void transaction is invalid due to the requirements of the law, i.e. regardless of judicial recognition. Voidable and void transactions are conventionally divided into:

1. Transactions with a defect in the subject - transactions of citizens who do not have the necessary legal capacity to carry them out:

a) the transaction is made by a minor or legally incompetent (the transaction is void);

b) execution of a transaction by minors aged 14 to 18 years, as well as those with limited legal capacity (voidable transaction).

2. Deals with the vices of the subjective side:

a) transactions in which the true will of the subject does not correspond to the expression of will (imaginary and feigned transactions; transactions made under the influence of violence, threats; as a result of a malicious agreement between a representative of one party and the other party; committed by a citizen incapable of understanding the meaning of his actions or managing them );

b) transactions with defective formation of internal will (transactions made under the influence of delusion, under the influence of deception, and enslaving transactions).

3. Transactions with defects in form and content - failure to comply with a simple written form entails its invalidity in the case of a direct indication of this in the law, notarial - its invalidity; non-compliance of the terms of the contract with the law entails the invalidity of its part.

General provisions on the consequences of invalidity of a transaction

The consequences of the invalidity of the transaction are:

· bilateral restitution (restoration of the situation that existed before the violation of the right), which assumes that each party transfers to the other everything received under the transaction in kind, and if this is impossible, in the form of monetary compensation;

· unilateral restitution, in which one of the parties returns what it received under the transaction to the other party, and that party transfers everything that it received or should have received under the transaction to the income of the Russian Federation;

· preventing restitution, in which everything that both parties received or should have received under the transaction is collected into the income of the Russian Federation;

· compensation for actual damage, etc.

The general consequence of the invalidity of transactions (unless otherwise provided by law) is bilateral restitution. Bilateral restitution (from the Latin restituere - “to restore”) is the return of the parties to their original position, i.e. the obligation of each party to return to the other party what was received under the relevant transaction.

If there is intent on the part of one of the parties to such a transaction, unilateral restitution is applied. In accordance with Art. 179 of the Civil Code of the Russian Federation, such transactions include transactions made under the influence of deception, violence, threats, malicious agreement between a representative of one party and the other party, as well as transactions that a person was forced to make as a result of a combination of difficult circumstances on conditions that were extremely unfavorable for himself than the other party. took advantage (enslaving deals).

If there is intent on the part of both parties to a transaction made for a purpose that is obviously contrary to the foundations of law and order or morality, restitution is prohibited.

Forms of civil liability

The forms of civil liability are:

· compensation for losses

· collection of penalties

· collection of interest for the use of other people's funds

· compensation for moral damage

1. Compensation for losses.

Losses are understood as real damage (i.e., expenses that the creditor has made or will have to make to restore the violated right, the value of lost property or the value by which the value of damaged property has decreased) and lost profits (i.e., lost income that the victim would have received under normal conditions of civil circulation, if his right had not been violated).

Compensation for damages is a universal measure of civil liability and applies to any offense, regardless of whether it is provided for in a particular case by law or contract.

2. Penalty. In legislation, fines and penalties are used as types of penalties. If it is difficult to identify any special features regarding fines, then the specific features of penalties in the form of penalties are obvious. They consist in the fact that a penalty is established in case of delay in fulfilling an obligation, i.e. it is intended to ensure only timely submission of fulfillment of the obligation; the penalty, as a rule, is determined as a percentage in relation to the amount of the obligation not fulfilled on time; The penalty is a continuing penalty that is collected for each subsequent period of delay in an unfulfilled obligation.

Depending on whether the penalty is established by law or by contract, a distinction is made between contractual and legal penalties.

The contractual penalty is established by agreement of the parties. Its size, calculation procedure, conditions of application, etc. determined solely at their discretion. An agreement on a penalty must be made in writing, regardless of the form of the main obligation, which may also arise from an oral transaction. Failure to comply with the written form shall result in the invalidity of the liquidated damages agreement.

A legal penalty is subject to application regardless of whether the obligation to pay it is provided for by agreement of the parties (Article 332 of the Civil Code). True, the fate and scope of application of a legal penalty largely depend on the legal norm in which it is contained. If a penalty is provided for by a mandatory norm, it is subject to unconditional application. In cases where the provision on a penalty is contained in a dispositive norm, it is applied only insofar as the parties by their agreement did not provide for a different amount of the penalty.

The amount of a legal penalty can be changed by agreement of the parties only upward, unless this is prohibited by law (clause 2 of Article 332).

Penalties differ in their relationship to losses caused by the same violation of the contract for which the penalty is established. The general rule is an offset penalty (losses are recovered only in that part that was not covered by the penalty). However, the law or contract, as an exception to this rule, may provide for cases when only a penalty is recovered, but not losses (exceptional penalty), when losses are recovered in the full amount in excess of the penalty (punitive or cumulative penalty), and also when, at the choice of the creditor, they can either damages or a penalty (alternative penalty) be recovered.

3. Collection of interest for the use of other people's funds is a specific form of liability applied for non-fulfillment or improper fulfillment of monetary obligations (Article 395 of the Civil Code of the Russian Federation).

The amount of interest for the use of other people's funds is determined according to the uniform discount rate of the Central Bank of the Russian Federation (refinancing rate). Interest is accrued on the amount of funds payable to the creditor for the entire period of their unlawful use until the day of actual payment.

4. Compensation for moral damage is aimed at compensating for the physical or moral suffering of the victim caused by the violation of his non-property (or property if this is specified in the law) rights (Article 151, 1099-1101 of the Civil Code of the Russian Federation).

Moral damage is compensated in monetary form. The amount of compensation is determined by the court taking into account the degree of guilt of the offender, the degree of physical and moral suffering of the victim, his individual especially

There are bilateral and unilateral agreements. Bilateral (or synallagmatic - the term “synallagmatic” comes from the ancient Greek word aug|oLHautsa, agreement, transaction, sometimes obligation!0830]) is an agreement in which both parties are mutually creditor and debtor (note to Article 139 of the Civil Code). A bilateral contract gives rise to at least two reciprocal obligations, so that each party is a creditor for one of these obligations and a debtor for the other. A typical example of a bilateral contract is a sale and purchase: the seller, as a creditor, can demand payment of the price and, as a debtor, is obliged to transfer the thing to the buyer, and the buyer, as a creditor, can demand the transfer of the thing to him and, as a debtor, is obliged to pay the price. Bilateral contracts, in addition to purchase and sale, include barter, contract, paid order, property lease, etc.

Some contracts arise as unilateral, but during the validity of the contract the creditor may have obligations towards the debtor, and the debtor may have rights of claim against the creditor. This is the case with a gratuitous assignment agreement, which creates the obligation of one party (the attorney) to fulfill the assignment and the right of the other party (the principal) to demand this execution. A gratuitous assignment agreement may not give rise to other obligations. But since the attorney executes the assignment at the expense of the principal (Article 251 of the Civil Code), the principal is obliged to reimburse the attorney for the costs of executing the assignment (Article 256 of the Civil Code), if any. Another example would be a free storage agreement. This agreement gives rise to the obligation of one party (custodian) to the other to store a certain thing. The agreement may not give rise to other obligations. However, if expenses for storing the item are necessary, the custodian has the right to reimbursement. Such contracts, which arise as unilateral, but in the future can give rise to the rights and obligations of one and the other party, are often called imperfect bilateral contracts.

The concepts of a bilateral and unilateral agreement should not be confused with the concepts of a bilateral transaction (otherwise, a mutual transaction or agreement) and a unilateral transaction. Every agreement is a bilateral transaction, including a unilateral agreement!0833]. The division of transactions into bilateral (mutual or agreements) and unilateral refers to the expression of will of the parties to the transaction. The division of contracts into bilateral and unilateral refers to the distribution of rights and obligations between the parties to the contract.

Rights and obligations under a bilateral agreement are mutually determined. By virtue of Art. 139 of the Civil Code in a bilateral case, each party has the right to refuse satisfaction to the opposing party until it receives reciprocal satisfaction. If one of the parties presents a demand to the other for performance without offering performance itself, then the other party may make an objection, referring to Art. 139 of the Civil Code and delay execution!0834] (the so-called exceptio non adimpleti contractus).

The norm formulated in Art. 139, is dispositive!0835]. The parties may agree in the contract that one of the parties must fulfill its obligation before the other. The obligation of one of the parties to fulfill before the other may also arise from the essence of a particular agreement. In addition, the sequence in which the parties perform their obligations may be established by law. The issue of the sequence of fulfillment by the parties of their obligations is specially regulated for the most important contracts (supplies, construction contracts, etc.) between socialist organizations. As a general rule, if the party obligated to perform first turns out to be faulty, the other party may delay the performance of its obligation (see lit. “a”, Article 1 of the STO resolution of January 14, and March 20, 1931 - SZ USSR 1931 , No. 40, Art. 282).

Examples of one-sided transactions

You can understand what unilateral transactions are based on specific examples. The following cases have the characteristics of a unilateral transaction:

• Granting a power of attorney (Article 185 of the Civil Code of the Russian Federation).
• Issuing a check.
• Pass.
• Application of a person to leave the LLC.
• Refusal of property and rights transferred by inheritance (Article 157 of the Civil Code of the Russian Federation).
• Acceptance of inheritance (Article 1152 of the Civil Code of the Russian Federation).
• Directing the execution of payment to an absent creditor.
• Public statement on the appointment of a reward for the found property (Article 1055 of the Civil Code of the Russian Federation).
• Public statement about holding a competition (Article 1057 of the Civil Code of the Russian Federation).

As can be seen from the notes to the list, certain unilateral transactions are regulated not only by Article 155 of the Civil Code of the Russian Federation, but also by other regulations.

Differences between unilateral and multilateral transactions

Let's look at all the differences between regular contracts and unilateral agreements.

Unilateral agreementsStandard agreements

A unilateral transaction is a simpler type of agreement, since there is no complex variety of relationships characteristic of ordinary contracts.

Transactions aimed at terminating rights

The last type of legal termination transactions is quite interesting, because there are very few examples of such legal relations in the Civil Code. In Civil Law there is such an institution as waiver of rights. Article 9 of the Civil Code of the Russian Federation states that the refusal of an individual or legal entity from its right does not entail the termination of its existence. It follows that in obligatory legal relations, for example, a creditor may waive the right to collect a debt, but this will not mean that it disappears. In turn, a terminating unilateral transaction creates obligations for the other party. Its essence is to accept the waiver of the right, because the debtor cannot force the creditor to exercise the right to collect the debt. Termination transactions raise the largest number of questions among scientists. Since many generally deny the existence of this species. For example, waiver of rights does not apply to transactions at all. This is more likely a source of legal relations than obligations.

Types of unilateral transactions

The classification of unilateral transactions is carried out on the basis of certain characteristics. Let's consider this classification. Based on the number of participants, agreements are divided into these forms:

• A unilateral transaction concluded by one person (a clear example is a will, which cannot be concluded collectively).
• A unilateral transaction in which many persons participate (this is the provision of a power of attorney from several people, a public statement of remuneration).

Transactions are divided into types depending on the nature of the legal consequences:

• Law-altering. When they are concluded, the relationship between the parties is adjusted. An example of such a transaction is the fulfillment of an obligation or the imposition of a penalty on items pledged.
• Right-beginning. As a result of the conclusion of an agreement, a right or obligation is formed. An example is a public announcement about a competition.
• Legally terminating. A party is presumed to be waiving a right previously granted. For example, the heir does not want to receive an inheritance and draws up a document with the corresponding expression of will.

Concept in legislation

Among the variety of transactions, those in which the will of only one person (a private citizen or a legal entity) is expressed are also included. In essence and in legal status, these unilateral transactions are no different from the others:

1. The contents of the agreement are legal – i.e. fulfillment of obligations under a contract (or other document) does not in any way violate current legislation.
2. The terms of the agreement can be fulfilled by both parties – i.e. all obligations are fundamentally fulfillable.
3. The content fully corresponds to the will of the person.
4. The form also takes into account all legal requirements (mandatory presence of an agreement or other document, its certification by a notary in some cases - for example, a will).

Thus, a unilateral agreement has all the mandatory features of a transaction and meets all these criteria at once. As for the legislation governing such agreements, the definition is given in Article 154 of the Civil Code of Russia. It is possible to unilaterally express the will of one specific person (individual and legal entity), in this case:

1. A person can represent only himself or represent the interests of a group of people.
2. The person who expressed the intention always has certain obligations (for example, the obligation to resign from the founders of the company), and often certain rights (for example, the right to change the text of the will at any time). That is, the party itself formulates its rights and obligations .
3. The will of a person is always associated with a specific addressee or several (group) addressees. That is, legal consequences always relate not only to the party who expressed the intentions, but also to other persons. In this regard, they may have certain rights. In rare cases, responsibilities arise. For example, if a contract was entered into that was secured by a security deposit, and then the contract was breached, the party that suffered the loss may begin tax collection proceedings.

Accordingly, the parties to such an agreement are:

1. A person who has expressed his will, representing his interests individually or the interests of a group that has delegated such powers to him.
2. An addressee (or group of addressees) to whom the agreement gives certain rights. In this case, the recipient himself decides whether to accept them or not.
3. Third party - in some cases, the participation of other persons who directly ensure the implementation of the will of the only party to the agreement is possible.

A visual comparison of the addressee and the applicant of the will (initiator) is presented in the table.

EXAMPLE. A citizen makes a will in respect of the addressee, who is the son of his close friend. For example, in the case of receiving an apartment, the heir is obliged to accept all debt obligations of the testator, if any (or part of such obligations, if there are several heirs). The heir can either refuse the property or accept it along with the debts. If he has to prove his rights through the court, he will act as a third party ensuring the implementation of a unilateral transaction.

Thus, such transactions differ from contracts, which always involve two or more parties. In addition, these parties have both rights and obligations. Although in legal practice they often talk about a unilateral contract, such a concept is not entirely correct, because a contract is an agreement of at least two parties.

How to refuse a one-sided transaction

Let's look at an example. One type of unilateral transaction is the voluntary transfer of real estate to the addressee. The recipient has the right to refuse to accept housing. The refusal can be issued only after the date of registration of the deed of gift and the transfer of documents for registration of the transaction to the registering authority. If the documentation has already been sent to Rosreestr, registration can only be canceled through the court.

To refuse, the donee must send an application to Rosreestr to complete the accounting work. The second step is to draw up a claim for termination of the agreement and send it to court. The donee can refuse the property even after he has already taken ownership. This can be done within a year after taking ownership in standard cases. If there are special circumstances, this period is extended to 3 years.

Conditions for recognizing a unilateral transaction as valid

The transaction will be considered valid only if these conditions are met:

• All provisions of the agreement comply with the law.
• A unilateral transaction was concluded by a legally capable person.
• The document sets out a single will. The points of the agreement should not contradict each other.
• The agreement was concluded by voluntary expression of will. If pressure was exerted on the person, the unilateral transaction is considered void.
• If the form of the document is specified at the legislative level, it must be observed.

If these points are not observed, the unilateral transaction is considered invalid even if there is no addressee. Registration authorities simply will not register the agreement.

IMPORTANT! One of the essential conditions for concluding a unilateral transaction is the possibility of its implementation. If it is known that the provisions of the agreement cannot be fulfilled, it is recognized as not concluded.

Terms of contracts, types of contracts

Legislation regulates the procedure by which a contract is concluded. In this case, the parties must take into account the conditions under which the contract can be recognized as valid by law. There are certain types of contract terms, including ordinary, incidental and essential terms. The most important are the essential terms of the contract.

If they are not taken into account when concluding the contract, then the document is invalid. So, the essential terms of the contract are the subject of the contract, the conditions specified in the regulations, and the conditions under which the parties can reach an agreement. The subject of the agreement is what it is concluded for. For example, the subject of a purchase and sale agreement is a product, and a contract is the work that one of the parties must perform.

The conditions contained in the acts are those that the legislator has determined for each individual type of contract. The conclusion of an agreement on the basis of which the sale of goods occurs cannot be done without specifying the price in the agreement. As for the conditions upon application of which the subjects can come to agreement, they are, for example, the procedure and timing of payments.

If the parties do not insist on including these conditions in the contract, then it can be considered concluded. Then only the essential terms of the contract relating to the subject matter and mandatory conditions should be taken into account. In a situation where one of the parties requires such conditions to be included in the contract, then the other party must agree, otherwise the agreement will not be concluded. Changes in the terms of the agreement are carried out in the manner prescribed by law.

There are certain types of agreements, among which are: agreements of purchase and sale, supply, lease, as well as agreements of donation, transportation, credit and surety agreements. If we talk about the legal nature, they are divided into the following types of contracts - preliminary and final.

A preliminary agreement is an agreement that implies the conclusion of a main agreement in the future. And the final agreement contains clearly defined information about the rights and obligations of the parties related to the implementation of certain actions. These types of contracts have their own special legal nuances that should be taken into account when concluding.

Invalidation of a unilateral transaction

If a transaction, regardless of its type (unilateral, multilateral), is concluded in violation of current laws, they are declared invalid. The criteria for recognizing the invalidity of a transaction depend on the subject of the agreement. For example, if this is a transfer of real estate, you can use the criteria given in Articles 166-167 of the Civil Code of the Russian Federation. Let's look at them in more detail:

• The accompanying documents were found to be illegal. The object of the transaction itself may also be illegal. In this case, the transaction will be considered invalid.
• A claim was filed alleging that the transaction violated the property powers of third parties. In this case, the agreement will be considered voidable.
• The illegality of a unilateral transaction was established in court. In this situation, the agreement is considered void.

Controversial point

Unilateral transactions in civil law quite often cause some controversy, and often specifically regarding the public announcement of a competition, which is later cancelled. If the recipients have already read the offer, but the initiator has canceled the competition, what to do? The legislation says unequivocally that a unilateral transaction is irrevocable, because the interested parties have already become familiar with it. Confirmation of this is enshrined in Articles 188 and 371 of the Civil Code.

It is quite difficult to rely on judicial practice, since there are very few disputes regarding unilateral transactions. In addition, little attention is also paid to resolving the issue of unilateralism of transactions in the scientific legal literature; there are no studies of unilateral expression of will, therefore, resolving the issue within the framework of the situation described above is very difficult.

Deadlines in transactions

The expiration of a transaction can be interpreted in different ways. You can take the example of a debtor and a creditor. If the transaction time is over and the debtor has not fulfilled his obligations, the creditor can make one of two decisions:

• The creditor will terminate the contract unilaterally and try to collect the entire debt.
• The creditor will not immediately collect the debt, but will wait until penalties begin, which, according to the Civil Code, the debtor will have to pay.

This is just one example of a unilateral transaction in civil law; in fact, there are many more.

Unilateral and bilateral transactions in civil law

Their main difference lies in the number of parties involved. What are they?

• Multilateral – arise on the basis of statements by several parties. An example is the signing of a cooperation agreement by three different companies.
• Double-sided. It is in this case that the contract is drawn up. Issued when there are two participating parties. With their help, disputes and conflicts are resolved, purchases and sales take place. The most popular type.
• Unilateral – arising as a result of the will of one person, they create civil legal relations. Several people participate in them, one of whom was willing to conclude such a document. The number of such procedures is quite limited: issuing checks and various payment orders, refusal of inheritance, writing deeds of gift and wills, public announcements of the start of a competition for the creation of works of literature, science, and art.

The other two types differ from the first in that they are called contracts.

Types of transactions.

There are different types of unilateral transactions, the difference between which is determined by their legal consequences.

✔ Legal transactions.

The peculiarity of such a transaction is that it arises from already existing legal relations. Implementation becomes possible if the law or agreement of the participants allows the possibility of unilateral expression of will. An example of this type of transaction could be the collection of property that was provided as collateral in the event of failure to repay debt obligations on time.

✔ Rights-altering transactions.

This agreement is also possible on the basis of an already concluded contract. It makes certain changes to the original conditions. An example of a right-altering unilateral transaction would be the refusal of an ordered product before its arrival.

✔ Law-defying transactions.

Such transactions contain an offer from one of the parties to the other party. The peculiarity is that acceptance of the conditions is not mandatory; in this case, the addressee is only offered certain legal consequences. An example of such a transaction: execution of a will or issuance of a power of attorney.

✔ Legal termination transactions.

This type involves unilateral renunciation of one’s rights. This category, for example, includes the abandonment of inherited property.

It is important to take into account that such a division is quite vague and any unilateral transaction can be classified into several types at once. For example, throwing away an unnecessary item is a terminating transaction, but if it poses a danger to others, the former owner is obliged to dispose of it. And this is already a legal transaction.

○ Reasons for occurrence.

A unilateral transaction is any action by individuals or organizations that results in the emergence, change or termination of legal relations. The basis for its occurrence is the expression of the will of one or both parties, which leads to certain legal consequences. The difference between a unilateral transaction is that its implementation by one party generates legal results for the other, which did not take part in the agreement. Examples of a unilateral transaction: drawing up a will, issuing a power of attorney, entering into inheritance rights and other actions that have a legal result.

The general provisions on obligations and contracts are accordingly applied to unilateral transactions, since this does not contradict the law, the unilateral nature and essence of the transaction. (Article 156 of the Civil Code of the Russian Federation).

Concept and types of obligations from unilateral actions

What is meant by unilateral action

How obligations arise in unilateral transactions

Types of obligations from unilateral transactions

What is meant by unilateral action

In Art. 153 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) gives a rather meager concept of a transaction. According to this norm, all actions of citizens or legal entities aimed at establishing, changing or terminating civil rights (obligations) are transactions.

In the theory of civil law, the concept of a transaction is broader. It is understood as an action performed in accordance with the requirements of the law, which entailed such legal consequences that were expected and desired for the parties involved in the transaction. This leads to the conclusion that illegal actions only have the appearance of transactions, but in fact they are not such (for example, the sale of stolen goods).

In civil circulation, bilateral (multilateral) transactions—contracts—more often appear. But in addition to concluded contracts, unilateral transactions can also be a way of regulating civil legal relations between their participants.

According to paragraph 2 of Art. 154 of the Civil Code of the Russian Federation, a unilateral transaction is considered to be such a transaction for which the will of only one party is sufficient. You can read more about unilateral transactions in the article on our website What is a unilateral transaction as an example?

In other words, a person commits a unilateral action in the interests of other persons, and the legislator allows him not to obtain their consent to this. Therefore, an action performed in a unilateral transaction by its subject can be called unilateral.

How obligations arise in unilateral transactions

In Art. 8 of the Civil Code of the Russian Federation lists the conditions under which civil rights and obligations arise. And the very concept of obligation is given in paragraph 1 of Art. 307 Civil Code of the Russian Federation. It is considered the commission by one person of an action in favor of another person or abstention from its commission.

Concept, features and functions of the contract

The conclusion of an agreement requires the expression of the will of two or more subjects. In other words, it is an agreement by which the parties establish, change or transform mutual rights and obligations. Moreover, all persons have a certain freedom, that is, they can choose whether they need to conclude an agreement or not.

However, the legislator allows coercion to enter into an agreement. This is possible only in some cases, for example, if a person has assumed certain obligations, and the conclusion of an agreement is directly related to their fulfillment. These rules are contained in civil law.

There are also functions of the contract, for example, proto-forming, law-changing and law-terminating. That is, on the basis of an agreement, the right to property of one of the parties can either arise, change or terminate.

In addition, the conclusion of the contract provides that it performs other functions. The functions of the contract are that the document guarantees compensation for losses if the parties refuse to fulfill their obligations.

Cases in which a unilateral transaction may create obligations for other persons

According to the norms of the current civil legislation, the main principle in the regulation of legal relations is the principle of equality of all participants in legal relations. No one can, by his own will, change or create the duties of others, subjugate them, forcing them to act in a certain way. There are no rights that would enable one person to subjugate another.

Civil law states that unilateral transactions concern two or more persons. Such an agreement creates obligations for the citizen who made this transaction. For other persons, a unilateral agreement may create obligations only in cases provided for by law or by prior agreement of the parties.

Unilateral transactions that create certain obligations for others are called unilaterally binding transactions. A testamentary refusal is the most striking example of this type of unilateral agreement.

Transactions in Roman private law

The concept of a transaction practically did not exist in Roman law, and even more so, Roman lawyers did not distinguish unilateral transactions.

The main source of change, emergence and termination of rights, duties and obligations were considered to be agreements between the parties and contracts (contractus). As such, transactions were carried out in the presence of the praetor. The man declared that the thing he was holding belonged only to him.

Next, the praetor asked the other side whether she agreed with this statement. If there were no objections, the right passed from one person to another. Thus, a significant change was made in the structure of rights and obligations between the two persons. Later, Roman jurists identified transactions as the general concept of the fact of the occurrence of obligations. The structure of the term included the understanding of contracts and agreements - the main sources of obligations in Roman law. Since the times of Ancient Rome, the concept of a transaction has changed significantly, so the modern institution differs from the ancient Roman one in many ways.

Requirements for a unilateral transaction

Any unilateral transaction must be legal and feasible. Such an action is recognized as legal if it fully complies with all the requirements of civil law. If one of the parties has illegal interests, the transaction may be considered invalid. All permitted and unauthorized actions under such procedures are clearly regulated by the Civil Code of the Russian Federation.

Basic requirements when concluding a unilateral transaction:

• This is an opportunity to implement it. If it happens that the end of the transaction cannot occur, then it is considered unconcluded.
• When concluding a transaction, it is imperative to comply with legal and factual requirements. Legal requirements - that all conditions of the procedure are legal, and the content itself must comply with the Civil Code, regulations and other laws that regulate civil relations.

According to the Civil Code of the Russian Federation, when considering the legality of a completed transaction, both the analogy of law and the analogy of law are taken into account. Based on this, if the relations of the parties when making a transaction are not regulated by law, but nevertheless do not contradict it, the transaction is recognized as legal.

Lawyer's advice:

✔ Is the participation of a notary necessary in concluding unilateral transactions?

Notarization is mandatory, depending on the type of unilateral transaction. For example, when drawing up a will or executing a power of attorney, it is necessary. And if the product is rejected before receiving it or the pledged property is sold, it is not required.

✔ Is it possible to cancel a unilateral transaction? What grounds for cancellation exist?

The legislation does not have general rules for canceling unilateral transactions; the basis for this may be: violation of the rights of another citizen, non-compliance of the terms of the transaction with the law, etc.

Sources

• https://assistentus.ru/vedenie-biznesa/odnostoronnie-sdelki/
• https://FB.ru/article/468352/odnostoronnyaya-sdelka—eto-sdelka-dlya-soversheniya-kotoroy-neobhodimo-i-dostatochno-vyirajeniya-voli-odnoy-storonyi-statya-gk-rf-dogovoryi-i- one-sided-sdelki
• https://7jurist.ru/odnostoronnie-sdelki-primery-24315/
• https://topurist.ru/article/54187-odnostoronnyaya-sdelka.html
• https://bizsovets.ru/odnostoronnie-sdelki-vidy-primery-obyazatelstva.html
• https://advokat-malov.ru/sdelki-i-sroki/obyazannosti-po-odnostoronnej-sdelke.html
• https://www.syl.ru/article/313336/primer-odnostoronnih-sdelok-v-grajdanskom-prave

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