The form of the transaction is subject to law. Law applicable to the form of transactions

The law applicable to the form of the transaction. Form of foreign economic transaction.

1. The form of a transaction is understood as the method of expressing the will of the parties. Transactions can be made orally or in writing (simple or notarial), as well as through so-called implied actions, i.e. by performing some actions indicating the intention of a person or persons to enter into a transaction.

Failure to comply with the legal form of the transaction may result in its invalidity. In the field of relations in the field of private international law, special requirements may be imposed on the form of the transaction. Russian legislation has general rules regarding the application of law to the form of ordinary transactions and special rules regarding foreign economic transactions.

The third part of the Civil Code of the Russian Federation contains several rules on the application of law in relation to the form of the transaction. Two of them (clause 1 and clause 3 of Article 1209) contain general rules on the application of law to transactions, and one (clause 2 of Article 1209) contains special rules on the form of foreign economic transactions. The main norm is contained in paragraph 1 of Art. 1209.

Article 1209. Law subject to application to the form of the transaction

1. The form of the transaction is subject to the law of the place where it was concluded. However, a transaction made abroad should not be declared invalid due to non-compliance with the form, if the requirements of Russian law are met.

The rules provided for in paragraph one of this paragraph also apply to the form of power of attorney.

2. The form of a foreign economic transaction, at least one of the parties to which is a Russian legal entity, is subject to Russian law, regardless of the place where this transaction was made. This rule also applies in cases where at least one of the parties to such a transaction is an individual carrying out entrepreneurial activities, whose personal law, in accordance with Article 1195 of this Code, is Russian law.

3. The form of the transaction in relation to real estate is subject to the law of the country where this property is located, and in relation to real estate that is included in the state register in the Russian Federation, to Russian law.

According to the current civil legislation, an agreement in writing must be concluded by drawing up one document signed by the parties, as well as by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from a party to the agreement ( clause 2 of article 434 of the Civil Code).

The Vienna Convention recognizes that a contract is not required to be concluded or evidenced in writing or subject to any form requirement. The existence of an agreement can be proven by any means, including testimony (Article 11).

Thus, we should proceed from the imperative nature of the norms of Russian legislation on the mandatory compliance with the written form of foreign economic transactions.

The law applicable to the form of the transaction. Form of foreign economic transaction. - concept and types. Classification and features of the category "Law subject to application to the form of a transaction. Form of a foreign economic transaction." 2015, 2017-2018.

The generally accepted rule in international private law has become the rule of subordinating the form of the transaction to the law of the place where it was concluded.

The Civil Code of the Russian Federation contains the norm of Article 1209 of the Civil Code, which contains rules regarding the form of the transaction.

As a general general reference, the Civil Code adopted the generally accepted rule that the form of a transaction is subject to the place where it was concluded. This norm refers to all transactions of an international nature, with the exception of foreign economic ones, at least one of the parties to which is a Russian legal entity; such transactions are discussed in paragraph 2 of the same article. At the same time, the law provides the following condition: a transaction made abroad cannot be declared invalid due to non-compliance with the form, if the requirements of Russian law are met.

The structure of this conflict of laws rule is of certain interest. The scope of the conflict of laws rule, clause 1, art. 1209 is a form of transaction complicated by a foreign element. However, there are several, namely, two conflicting bindings. This rule is distinguished by the cumulation of conflict of laws (the form of the transaction is subject to the law of the place where it was concluded, but if it diverges from Russian law, compliance with the latter is sufficient).

Clause 2 Art. 1209 contains a mandatory conflict of laws rule on the subordination of the form of a foreign economic transaction with the participation of a Russian legal entity to the law of the Russian Federation. The same rule applies to an individual who has the law of the Russian Federation as a personal law and carries out entrepreneurial activities.

And another special conflict of laws rule is provided for in relation to the form of a transaction in relation to real estate, which is subject to the law of the location of the real estate and Russian law, if the real estate is included in the state register of the Russian Federation.

The Civil Code of the Russian Federation contains a requirement to comply with a simple written form of a foreign economic transaction, the absence of which entails its invalidity.

The issue of the form of the transaction is not always resolved in the same way as provided for in the legislation of the Russian Federation. Continental and Anglo-American law do not establish strict requirements for compliance with the written form of a transaction. Even a foreign economic transaction can be concluded in any form.

This rule is also reflected in unified international legal acts. So the Vienna Convention of 1980 establishes in Art. 11 no requirement that the sales contract be concluded and confirmed in writing or be subject to any other form requirement. It can be proven by any means, including testimony.

However, at the same time, the Convention also takes into account the interests of the participating states, which enshrine in their national legislation certain requirements for the form of a foreign economic transaction. This is done in Art. 12, which establishes the right of each state to make a statement about the non-application of Art. 11 about any form of transaction. Therefore, for states that upon accession made such a reservation, instead of Art. 11 Art. 12 on the non-use of any form of transaction.

In the Russian Federation, as already mentioned, a requirement has been introduced for the mandatory written form of foreign economic transactions.

However, references to the provisions of Art. 162 of the Civil Code of the Russian Federation when concluding an international sale and purchase agreement by a Russian legal entity will not be enough, since there is Art. 15 of the Constitution of the Russian Federation, which establishes the priority of the norms of an international treaty of the Russian Federation in case of conflict with the norms of national legislation. Therefore, Art. 11 of the Convention on Contracts for the International Sale of Goods, to which the Russian Federation is a party, and the sales contract can be concluded in any form.

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[Civil Code of the Russian Federation] [Chapter 68] [Article 1209]

1. The form of the transaction is subject to the law of the country applicable to the transaction itself. However, a transaction cannot be declared invalid due to non-compliance with the form if the requirements of the law of the country where the transaction was concluded regarding the form of the transaction are met. A transaction made abroad, at least one of the parties to which is a person whose personal law is Russian law, cannot be declared invalid due to non-compliance with the form, if the requirements of Russian law for the form of the transaction are met. The rules provided for in paragraph one of this paragraph also apply to the form of power of attorney. If there are circumstances specified in paragraph 1 of Article 1212 of this Code, the law of the country of residence of the consumer, at his choice, is applied to the form of the contract with the participation of the consumer. 2. If the law of the country of establishment of a legal entity contains special requirements regarding the form of an agreement on the creation of a legal entity or a transaction related to the exercise of the rights of a participant in a legal entity, the form of such an agreement or transaction is subject to the law of that country.

3. If a transaction or the emergence, transition, limitation or termination of rights under it is subject to mandatory state registration in the Russian Federation, the form of such a transaction is subject to Russian law.

4. The form of the transaction in relation to real estate is subject to the law of the country where this property is located, and in relation to real estate that is included in the state register in the Russian Federation, to Russian law.
1. The form of the transaction implies compliance with the requirements established by law

requirements for registration of a legally significant action of one person (unilateral

transaction) or two or more persons (bilateral and multilateral transactions). As

binding conflict rules traditionally use the law of the place of commission

transactions. However, if the requirements are violated when making a transaction abroad

the rights of the country where it was made, regarding its form, then such a transaction is all

Russian law. Reference to Russian law is used as a subsidiary

It should also be borne in mind that this article represents the only

a case of conflict of laws regulation of issues of the validity of a transaction, however,

limited only by the consequences of non-compliance with its form. Application of law

the country of the court in relation to these issues makes the rules of Russian law on compliance

forms of the transaction as one of the confirmations of their validity by imperative norms

according to the meaning given to them by Art. 1192 of the Civil Code of the Russian Federation.

Paragraph two of paragraph 1 of this article extends the above

rules for determining the proper law and the form of power of attorney. The conjunction "and" suggests

extension of conflict of laws regulation not only to the form of power of attorney,

as one of the manifestations of a unilateral transaction, but also on the form of all other unilateral

The general rule for determining the form of a transaction according to the law of the country where it was concluded

also provided for in the following international treaties of the Russian Federation:

Kiev Agreement on the procedure for resolving disputes related to the implementation

economic activities 1992, the Minsk Convention on Legal Assistance and

legal relations in civil, family and criminal cases 1993

2. This article provides for special conflict of laws regulation

for foreign economic transactions. This term is used without defining it

concepts. The concept of this term was not contained in previous legislation.

At the same time, the selection of foreign economic transactions from the entire array of civil law

transactions is of practical importance, since it is directly related to the features

legal regulation. If the transaction is “internal”, i.e. has no foreign

elements, then it is governed only by Russian law. If the transaction is foreign economic

as one of the types of international transaction, it is associated with the law of different states

and the problem arises of choosing the law of one of them, the rules of which should be

applied. To evaluate a transaction as international, it is necessary to use the criteria

definitions of a foreign element in civil law relations provided for

in Art. 1186 of the Civil Code of the Russian Federation, taking into account the mandatory presence of the Russian in such a transaction

legal entity. To evaluate an international transaction as a foreign economic

it is necessary to establish its entrepreneurial nature.

This article allows consideration of an international transaction as a foreign economic

and in cases where at least one of the parties to such a transaction is the carrying out

entrepreneurial activity is an individual whose personal law

in accordance with Article 1195 of this Code is Russian law.

Thus, if a transaction is concluded between a foreign company and an implementer

entrepreneurial activity by an individual whose personal law

is a foreign law, or between two foreign firms, such a transaction

may be recognized as international and of an entrepreneurial nature, but

not foreign economic.

The form of a foreign economic transaction is subject to Russian law, regardless of the location of the transaction. According to paragraph 3 of Art. 162 Civil Code of the Russian Federation foreign economic

transactions must be concluded in writing. Failure to comply with mandatory

written form of foreign economic transactions entails their invalidity.

3. Special conflict of laws regulation is also provided for the form

transactions in relation to real estate, including immovable property,

which is included in the state register in the Russian Federation. In the first

In this case, the law of the country where the property is located shall apply, and in

in the second case - Russian law.

This article does not disclose the concept of “transactions in relation to real estate”

property." Based on the broad interpretation of this term for such transactions

should include all transactions the subject of which is related to the use, possession

or disposal of real estate (purchase and sale, rent, etc.).

In any case, the qualification of the legal concept of “transaction in relation to

real estate" must be carried out in accordance with the rules of Art.

In case of application of Russian law, one can be guided by the Federal

property and transactions with it." This Law provides the following list of transactions with real estate

property subject to state registration: transactions entailing the emergence,

transfer, restrictions (encumbrances) of rights to real estate, including lease,

mortgage, trust management.

A similar conflict of laws rule is contained in the 1992 Agreement and the Convention

1993 According to paragraph "d" of Art. 11 Agreements form of transactions regarding buildings,

other real estate and rights to it are determined by law

location of such property. The same rule is reflected in Art. 39 of the Convention

Article 1209. Law subject to application to the form of a transaction General requirements: 1. The form of a transaction is subject to the law of the place where it was concluded. However, a transaction made abroad cannot be declared invalid due to non-compliance with the form, if the requirements of Russian law are met. The rules provided for in paragraph one of this paragraph also apply to the form of power of attorney. Special regulations for certain categories of cases: 2. The form of a foreign economic transaction, at least one of the parties to which is a Russian legal entity, is subject to Russian law, regardless of the place where this transaction was made. This rule also applies in cases where at least one of the parties to such a transaction is an individual carrying out entrepreneurial activities, whose personal law, in accordance with Article 1195 of this Code, is Russian law. 3. The form of the transaction in relation to real estate is subject to the law of the country where this property is located, and in relation to real estate that is included in the state register in the Russian Federation, to Russian law. These rules apply to both unilateral transactions and bilateral or multilateral transactions (agreements). According to paragraph 1, the form of the transaction is determined by the law of the place where it was concluded (lex loci actus). The following provides an alternative conflict of law link, applicable in the case of a transaction outside the territory of the Russian Federation. Such a transaction cannot be declared invalid due to defects in form, as long as it is valid under the law of the Russian Federation. Thus, in this case, it is sufficient to comply with the requirements regarding the form of at least one of two legal orders: foreign (the law of the place of the transaction) or Russian. The rules set out above also apply to powers of attorney. In fact, the most significant question that arises regarding the form of the transaction is the consequences of non-compliance with the established form. In paragraph 1 of the article, from a legal and technical point of view, there is a well-known manifestation of the principle of possible alternative application of the law of different countries in order to promote the stability of civil transactions by recognizing as sufficient compliance with less stringent requirements regarding the form of a transaction of one of the named legal orders (principle of favor negotii). In other words, the law that is more favorable for the purposes of recognizing the transaction as valid is subject to application. The form of a transaction refers to the requirements for completing a transaction. These requirements may include not only execution on a certain form, sealing, etc., but also the requirement to register the transaction in appropriate cases. The specific list of such requirements here can only be approximate. These may vary depending on applicable law. It is necessary to distinguish between the consequences of non-compliance with the form of the transaction, which may result in its invalidity, and the consequences of recognizing the transaction as invalid. The consequences of failure to comply with the form of the transaction are determined on the basis of the law applicable to the form of the transaction. In Russian legislation, general substantive provisions on the consequences of the invalidity of a transaction are set out in Art. 167 Civil Code. The consequences of the invalidity of the contract are expressly included in Art. 1215 of the Civil Code to the scope of the law governing the essence of contractual obligations. At the same time, the commented article specifically regulates the issue of the law to be applied to the form of the transaction. From a practical point of view, if in a case only issues of invalidity of a transaction arise due to defects in form and the transaction is recognized as invalid by the law applicable to the form of the transaction, then turning to another law (regulating the essence of the obligation and subject to determination under Art. 1210 - 1214, 1216, 1217 Civil Code) can create additional difficulties. Clause 2 of the commented article contains a special mandatory unilateral conflict of laws rule on the form of foreign economic transactions, the subject composition of which is related to Russia. Such transactions are subject to Russian law. The place of the transaction here no longer affects the applicable law. According to the Civil Code, foreign economic transactions must be made in simple written form under penalty of invalidity (clause 3 of Article 162 of the Civil Code). For the applicability of clause 2 of the commented article, it is necessary to participate in such a transaction at least one Russian legal entity or Russian citizen or a foreign citizen or stateless person residing in the Russian Federation. According to Art. 1195 of the Civil Code, the personal law of such foreign citizens and stateless persons is also Russian law (see Art. 1202 of the Civil Code on the personal law of a legal entity). Foreign economic transactions with other subjects do not fall within the scope of clause 2 of the commented article, and their form is determined on the basis of clause 1 of the commented article, unless this is a transaction in relation to real estate. In the latter case, clause 3 of this article applies. The rules of the commented article do not apply to the arbitration agreement. The conflict of laws problem of the form of transactions falling within the scope of international private law, as well as certain types of contracts, has also been resolved in international documents. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases of 1993 of the CIS countries contains a unified conflict of laws link to the law of the place of the transaction, conclusion of an agreement or issuance of a power of attorney, taking into account a special exception in relation to transactions with real estate, attachment in terms of formal requirements for which are carried out to the law of the state on whose territory the property is located. In light of this, if, according to the rules in force in the relevant jurisdiction, a notarial form of the transaction, rather than a simple written one, is required to complete a transaction with property, it must be completed in the specified form. If the validity of transactions with certain types of property is made dependent on their registration by the competent authority, failure to comply with this rule will affect its impeccability from a formal point of view.