Features of consensual agreements. Real and consensual deal difference

A real contract and a consensual one - the differences between them are very significant, and below we will look at what they are. The most important difference is at the moment of concluding the types of transactions in question; accordingly, after reading the publication, the reader will understand how to determine whether a particular contract is real or consensual. For greater understanding, we have provided examples of both types of agreements.

There is no direct indication of the differences between the types of contracts under consideration in the law. The question is theoretical, and legal theorists have long deduced all possible distinguishing features of a real and consensual transaction.

A real contract differs from a consensual one mainly in the time of its conclusion, i.e. the moment of emergence of rights and obligations based on the agreements reached. The procedure for determining the moment of concluding the agreements in question is defined in Art. 433 of the Civil Code of the Russian Federation (Part 1 of this norm stipulates the moment of concluding a consensual agreement, and Part 2 - a real one).

A consensual transaction is considered concluded when the parties reach an agreement on all its essential terms. A real transaction is recognized as concluded only after the moment of transfer of property.

Under such circumstances, the difference between a real contract and a consensual one lies in the moment from which the agreement begins to take effect. If in most cases it is enough to sign a consensual agreement to enter into force, then in a real transaction simply signing a document is not enough - the subject of the agreement must be transferred.

What is the difference between a real contract and a consensual contract? Examples of consensual and real contracts

The most striking example of a consensual transaction is a purchase and sale agreement. After it is signed, in accordance with the requirements of Art. 454 of the Civil Code of the Russian Federation, the parties are obliged to begin to fulfill its terms. In addition, consensual transactions include a work contract, a loan agreement, an agency agreement, and a transportation agreement.

The most expressive example of a real contract is a loan agreement. Even if the parties signed an agreement that reflected all the necessary essential conditions, it will not come into force. That is why the fact of transfer must be confirmed, for example, with a receipt or an acceptance certificate.

Additional examples of a real contract include the following contracts:

1. Gifts (if there is no promise of gift in the future).
2. Rents.
3. Rental of transport with crew.
4. Gratuitous use, if the lender has no obligation to transfer the thing to the borrower.
5. Transportation.
6. Financing against the assignment of a monetary claim (except for an agreement when the financial agent undertakes to transfer money to the counterparty in payment of the latter’s claim to a third party).
7. Bank deposit.
8. Storage, if the custodian has no obligation to accept the thing for storage in the future.
9. Insurance.
10. Trust property management.

There are many more consensual agreements than real ones, which makes it easy to distinguish them from each other. In addition, if the agreement states “shall” in the obligations of the parties, then it is most likely a consensual agreement. If “transfers” is indicated, then with a high degree of probability we can say that the contract is real.

Some agreements can be both real and consensual, for example, a deed of gift. It can be either real or consensual if the gift is transferred in the future and there is an agreement about this between the persons participating in the agreement.

Thus, the most significant difference between real and consensual contracts lies in the moment of their entry into force - from the moment of conclusion or transfer of the thing.

Today we'll talk about one of them. A consensual agreement is a voluntary agreement between two parties that does not require additional formalities. It should be noted that the consensual agreement appeared around the 3rd century BC.

According to experts, this type of contract was even simpler compared to real ones. In this case, it was necessary for both parties to reach a mutual consensus. If the transfer of goods or any thing was carried out, it was not with, but as its execution. Thus, the consensual agreement could not be abstract, but in fact depended on certain grounds. In those days, a consensual agreement could be concluded in two ways: directly by the participating parties themselves or with the help of intermediaries.

The subject of this agreement must be real things that represent some kind of product and are directly in commercial circulation.

If the consensual agreement was not fully executed, claims were provided to protect the buyer (otherwise actio empti) and, accordingly, to protect the seller (otherwise action venditi).

If you believe experts in this field, then in those distant times there were four different types of this agreement:

Hiring. There are three types of it:

Hiring of services (one party - the service provider - undertakes to perform some services in favor of the other party - the service recipient, who, in turn, must accept them and pay for the result accordingly).

Hiring of work (one party, represented by the contractor, must perform some work for the customer, who subsequently must not only accept it, but also pay for it).

Renting things (one party, represented by the lessor, must provide some thing for temporary use to the other party for a pre-agreed fee. The tenant, in turn, must use this thing, pay for it and return it exactly on time, which is also agreed upon when using such an addition as agreement to the contract).

Assignment. According to this document, one party (the principal) instructs the other party (the attorney) to perform certain legal actions in their own interests. The attorney, in turn, undertakes to perform these actions and then convey the results obtained to the first party.

Purchase and sale. In this case, one party acting as a seller (otherwise the vendor) undertakes to transfer ownership of a certain thing to the other party (otherwise the emptor), and the buyer, in turn, must accept it and subsequently pay for it. The main elements of the above agreement were the price and the product itself.

Partnership. When concluding this agreement, two or more persons unite to achieve common economic goals.

All of the above agreements are concluded through the use of an agreement between the parties on the most important points of the document, regardless of the external form. Note that consensual contracts still enjoy authority today.

1. Taking into account that classification is the distribution of any objects into classes in accordance with the selected criterion, various criteria are possible for classifying contracts. In the civil literature, there are more than ten different bases for dividing civil law agreements into types.

It is necessary to dwell on the most fundamental and practically significant criteria. The main criteria for the classification of contracts in Russian civil law:
a) the moment when contractual rights and obligations arise;
b) the presence or absence of an equivalent exchange of material goods (the presence or absence of reciprocal provision);
c) the contract assigns obligations to both parties or only to one of the parties.
The above criteria correspond to the most important, classic systematizations of contracts, which apply to almost every existing contractual type, since each of them has great practical significance, significantly affecting the rights and obligations of the parties. For each specific contract, it is important to accurately understand what place it occupies in each of these classifications. In some cases, the contractual type can be defined only from the point of view of the above classifications (for example, a general civil sales contract can only be consensual, but not real), in others it should be assessed on the basis of contractual terms (a storage agreement, depending on the conditions, can be both paid and gratuitous).

Chapter 27 of the Civil Code of the Russian Federation identifies a number of contractual varieties, which include:
– public contract (§ 6 of this chapter of the textbook);
– agreement of adhesion (§ 7);
– preliminary agreement (§ 8);
– an agreement in favor of a third party (§ 9).
2. All types of civil contracts discussed below fully fit into the definition of a contract formulated in Art. 420 Civil Code of the Russian Federation. Russian legislation also knows other varieties, which, although they are agreements, are not provided with state protection in case of violation of the terms of one of the parties.
During the Roman Empire, they were called natural agreements, and the obligations themselves generated by them were called natural obligations (obligationes naturales).
The parties can perform them voluntarily, and in this case, in accordance with the terms of the contract, they will have rights and obligations, but it is impossible to recover what was performed back as received unjustifiably. That is, the law recognizes the legality of such agreements, but does not give them the possibility of forced execution; a claim filed in court will be rejected, as is expressly provided for obligations from games and bets in accordance with Art. 1062 of the Civil Code of the Russian Federation. Nevertheless, such agreements are not so rare in life. In addition to the above agreements on conducting games and betting, these traditionally include any agreements under which either party missed a deadline. For such obligations, it is directly stated that it is impossible to demand back what has been performed outside with reference to its omission (Article 206 of the Civil Code of the Russian Federation). A natural agreement can be called an agreement on the gratuitous performance of actions of a non-property nature. Of course, strictly speaking, the parties can simply, based on moral or other considerations, fulfill an agreement that is void from the point of view of law. However, the difference in this case will be that such performance falls under unlawfully obtained by the other party. A natural contract serves as a valid legal basis for the emergence, change or termination of rights and obligations.
3. According to the criterion of the moment of emergence of rights and obligations, contracts are divided into two types:
– consensual;
– real.
In consensual contracts, the name of which comes from the Latin word consensus (agreement), rights and obligations arise when the parties reach agreement on all the essential terms of the contract in the form required for this (for the essential terms of the contract, see Chapter 31 “Conclusion of a contract” of this textbook).
In real contracts, the name of which comes from the Latin res (thing), for the emergence of rights and obligations, not only the existence of an agreement is necessary, but it is also required that at least one of the parties perform actions to transfer to the other party the things due under the contract. This is reflected in paragraph 2 of Art. 433 Civil Code of the Russian Federation.
This classification is very important; it determines the moment when the subjects of the contract become legally bound by the obligations provided for by the contract. If the rights and obligations under the contract have already arisen, each of the subjects is obliged to fulfill it, the counterparty has the right to demand such performance, and for refusal to perform that occurs after the entry into force of the contract, or for deviation from the terms agreed upon in the contract, the corresponding subject of the contract may be subject to prosecution. legal liability. This will be considered a violation of the contract and will entail corresponding negative consequences. Until the rights and obligations under the contract arise, on the contrary, no legal connection arises, and the absence of activity does not give rise to legal consequences.

Example. A classic example of a consensual contract is a purchase and sale agreement. As an example of a real contract, they often point to a loan agreement. Accordingly, in the first case, rights and obligations, as a general rule, arise among the parties when they have agreed on the subject of sale and purchase, and in the second, the mere fact of reaching contractual agreement is not enough. It also requires the lender to transfer the loan amount to the borrower. Otherwise, without the transfer of money, the agreement will not acquire legal force. Moreover, if, after signing the contract, the buyer refuses to accept the goods and pay the purchase price, he can be forced to do so, as if he were actually fulfilling an obligation from the contract. But if the lender, having signed the agreement, refuses to transfer the money to the borrower, the latter will not have any legal measures to influence the lender - and precisely because the agreement itself has not yet entered into force, therefore, the parties have no rights and obligations. Thus, this factor - what type of agreement this or that agreement belongs to - is of very important practical importance, since the possibility of initiating any legal procedures on the basis of the agreement depends on this.

4. As a general rule, the reality or consensuality of a contract can be determined by how exactly its legal definition is formulated in the law. In paragraph 1 of Art. 454 of the Civil Code of the Russian Federation states that under a sales contract, the seller undertakes to transfer the goods into the ownership of the buyer, and the buyer undertakes to accept these goods and pay a certain amount of money for them. The use of the terms “obliges” in relation to both parties indicates that first obligations arise to perform the appropriate actions (transfer the goods in exchange for money for it), and only then, in fulfillment of these obligations, they are implemented by the parties.
In contrast, in paragraph 1 of Art. 807 of the Civil Code of the Russian Federation, the concept of a loan agreement is formulated in such a way that the lender transfers money or other things into the ownership of the borrower, and the borrower undertakes to return them to the lender. In this case, the primary action of the lender is to transfer the loan amount, after which the borrower’s obligation to repay the loan arises.
This approach, which consists of analyzing the legal definition of a contract (which is in each chapter of Part Two of the Civil Code of the Russian Federation, dedicated to the corresponding contractual type), is very convenient and acceptable for establishing exactly what type of contract should be classified, but not always. Thus, some legal definitions of contracts directly indicate that a contract can be either consensual or real.
For example, by virtue of paragraph 1 of Art. 824 of the Civil Code of the Russian Federation, under a financing agreement under the assignment of a monetary claim, the financial agent transfers or undertakes to transfer funds to the client. In such cases, the moment at which rights and obligations arise directly depends on the text of the agreement agreed upon by the parties. And, of course, it is advisable for them to state the moment of entry into force of such an agreement quite clearly - taking into account the fact that the law does not do this for them.
And in some chapters one thing follows from the legal definition, and from subsequent norms of the law on this contractual type - the exact opposite. First of all, this should be said about the insurance contract. Due to the definitions of property insurance contracts (Article 929 of the Civil Code of the Russian Federation) and personal insurance (Article 934 of the Civil Code of the Russian Federation), we can conclude that they are consensual in nature: first the obligations, then their fulfillment. But in Art. 957 of the Civil Code of the Russian Federation directly states that, as a general rule, an insurance contract comes into force at the time of payment of the insurance premium or its first installment.
Thus, in order to understand exactly what the relevant contract is, knowledge of the legislation relating to it as a whole is necessary, only an analysis of the legal definition is not enough.

The concept of consensual agreements. A consensual agreement is a voluntary agreement between the parties in the same matter, which does not require any formalities. Consensual agreements appeared later than others and were established around the 3rd century. BC e.

In terms of the procedure for concluding, they were even more simple than real contracts. Here the matter was limited to the agreement reached by the parties, and if the transfer of the thing was carried out, it was not for the purpose of concluding, but in pursuance of an already concluded agreement. Thus, consensual contracts, like real ones, could not be abstract and in their reality depended on certain grounds.

Consensual agreements could be concluded directly by the parties or through intermediaries: “There is no doubt that we can conclude a partnership agreement through the transfer of things, and in words, and through a messenger” (D. 17. 2. 4).

The subject of the contract had to be things that constitute goods and are in commercial circulation (res in commercio). If the consensual contract was not fulfilled, then actions were provided: actio empti to protect the buyer and actio venditi to protect the seller.

Roman law distinguished four types of consensual contracts: purchase and sale, hire, commission, partnership. All of them were concluded through a simple agreement of the parties on the most important points of the contract, no matter in what external form this agreement may appear.

Purchase and sale. A purchase and sale (emptio-vendito) is a two-way contract in which the seller (venditor) assumes the obligation to transfer the thing (res) or goods (merx) into the possession and dominion of the buyer (emptor), and the buyer assumes the obligation to pay for this a conditional price in money (pretium). Two “good will” claims arise from such an agreement. With this claim, he can demand payment of the promised price and reimbursement of costs necessary or useful for the buyer made by the seller for the thing upon conclusion of the contract, but before transferring the thing to the buyer. The buyer files an action emti against the seller. With this claim he demands:

Transfer of a thing with all its fruits and increments;

Responsibility for all damages that the seller caused to the item through even slight carelessness in handling it;

Compensation for all losses if the seller turns out to be the non-owner of the thing, and therefore the thing sold by him to the buyer was then taken from the buyer by its real owner.

Over time, the responsibility of the seller began to be recognized for those shortcomings of the item that he did not know and could not know about.

If the seller fails to comply with the obligation to guarantee the quality of the item, the buyer could demand:

- “restoration to the original position”, i.e. termination of the contract and return of the money to him; this claim could be brought within six months from the date of the transaction. Restoration to the original position was sought by action of actio redhibitoria;

Reducing the purchase price in accordance with revealed defects of the goods - this claim could be brought within a year. A price reduction was sought through claims for a reduction in the purchase price due to the discovery of defects in an item or a simple claim for a reduction in the purchase price.

The seller was obliged to guarantee that he had the right to sell the thing, was its owner or the owner's representative (i.e., in any case, the seller was responsible for ensuring that the thing was lawfully provided to the buyer). If the thing turned out to be not his own, the buyer, against whom the declared owner brought a vindication claim, in turn had the right to demand from the seller double compensation for the damage he suffered (the cost of the thing).

The buyer's responsibilities were:

Pay for the goods in the prescribed amount of money and on time. It is interesting that the buyer, having paid for the goods, did not undertake to pick it up from the seller - this did not cancel the purchase and sale, and the risk of accidental loss of the item was assigned to the buyer, since legally he was already the owner of the item, despite the fact that he had not yet become its actual owner owner. “Once the purchase becomes effective, the risk is transferred to the buyer. If in relation to what is sold it is clear what it is, what it is and how much, and there is a price, and the sale is perfect...” (D. 18. 6. 8);

The buyer was obliged to inspect the item before purchasing to identify its shortcomings, as well as to ensure its quality. If the item was not inspected by the buyer according to his will, then it was considered as if inspected in the event of further disagreements.

It should be noted that purchase and sale did not arise if the price of the goods was expressed not in money, but in another thing. The content of the contract and the obligations of the parties were similar to the sale and purchase, but both parties were obliged to guarantee the quality of things and guarantee the ownership of things, since both of them were transferring things. Such a transaction was recognized by law as a consensual agreement of “good conscience” (bonafidei) or an anonymous contract. Exchange (permutatio) consisted in the fact that the parties to the contract exchanged not according to the “goods-money” scheme, but “goods-to-goods”; there was an exchange of ownership of two different things. If an agreement was established, but the transfer of not a single thing was carried out, then the contract was recognized as void, since for the validity of the exchange it was necessary that at least one of the parties fulfill its obligation.

Lease agreement. This agreement consists in the fact that one person undertakes to provide another with his things or his labor, and the other person (counterparty) undertakes to pay a remuneration for this. There are three types of hiring.

1 . Hiring things(locatio-conductio rei) is the hiring by one person from another person of one thing or several specific things for temporary use for a certain period and for a certain fee.

The subject of hire could be movable things that are not among those consumed, as well as immovable things. You could rent out your own thing or something belonging to a third party. In addition to material things, intangible things, such as usufruct, could also be rented. Along with the item, its accessories were transferred.

The term was not a mandatory element of the tenancy agreement. The rental agreement was considered valid from the moment of the agreement, and the obligations of the parties were also determined from the moment of the agreement: even if the work performed is lost or does not take place without the fault of the contractor, the employer is obliged to pay for it in full in accordance with the original agreement.

The lessor’s duty was to ensure unhindered use of the thing: “The lessee is given an actio conducti. He receives this claim almost only on the following grounds: for example, if it turns out to be impossible for him to use (perhaps because he is not given possession of the whole plot or part of it, or if the house, stable or the place where he needs to place it is not repaired). herd); The same claim can be used by the employer even if he is not provided with what is specifically provided for in the content of the contract” (D. 19. 2. 15. 1).

Unlike a loan agreement, the rental of things does not oblige the lessor to reimburse the costs of maintaining the thing, since this is a paid contract and maintaining the thing in good condition lies with the lessee. On the other hand, the employer was obliged to use the thing properly and be responsible for its safety. The lessee of the thing was not responsible for the unchanged physical condition of the thing: the meaning of the contract was to use it, which implied the possibility of wear and tear. Improvement of a thing not caused by necessity was not paid; deterioration was assessed according to the change in the thing. During the hiring process, it was possible to change the terms of employment in favor of the employer at his unilateral request; a change in favor of the lessor (or hired person) was not allowed. The lessee could sublease the rented thing unless the lessor stipulated that he prohibited doing so. Responsibility for the item remains with the lessee; he is responsible for its safety and return to the lessor. The subtenant, in turn, is responsible to the employer.

The rental period was not a mandatory element of the contract; the parties could withdraw from the contract at any time. If the contract was terminated by one of the parties, it had to take into account the opinion of the counterparty and not cause him great harm by this termination.

When establishing the validity period of the contract, if after its expiration neither of the parties showed a desire to actually terminate the employment relationship, then the contract was considered extended.

2. Work agreement(locatio-conductio operis) is an agreement under which one party (contractor - locator) undertakes to perform certain work (opus) on the instructions of the other party (employer, customer - conductor), and the customer undertakes to pay for the work performed. “The expression “locatio-conductio operis”, according to Labeo, means the kind of work that the Greeks designate with the term “finished work” ...” (D. 50. 16. 5. 1). Thus, the contract was concluded specifically for the performance of a specific work, and the goal was precisely to obtain a completed result of the work.

Anyone hired to perform a certain job had to do exactly what was specified in the employment contract. The work could consist of cultivating the land, creating something, etc. The main condition that had to be achieved was the final definite result of the work (for example, a finished product). The item could be made either from the customer’s material or from the contractor’s own material. In the case of the manufacture of a product from the contractor’s material, the contract turned out to be similar to a purchase and sale agreement; This controversial point was worked out by Roman lawyers, and some believed that such a contract should really be equated with the purchase of a finished product.

The contract was concluded for a certain period (performing a certain work), but if the period was not established, then it was considered that the work should be completed within a reasonable time, which is usually necessary to complete such work. Payment was usually made at the time the finished product was handed over to the customer. The reward was usually a negotiated sum of money, but could also be received in some kind of thing, i.e. in kind.

If the item is destroyed before it is transferred to the customer, responsibility falls on the contractor, but if he has already transferred the item, responsibility falls on the customer.

3. Contract for hiring services(locatio-conductio operarum) is an agreement between a hired worker and an employer, according to which the worker provides labor, and the employer uses it by paying for working time.

It was a fixed-term contract. Like other rental agreements, it was automatically extended if the parties did not wish to terminate it upon expiration of the agreement. Payment under the contract could be made both after the work was completed and at certain intervals (for example, daily). The hired worker was not responsible for downtime; if the employer could not use labor efficiently, then the employer had to pay the employee for his downtime: “The hired worker must receive wages for the entire period of employment, if the fact that he did not have to provide services did not depend on him "(D. 19. 2. 38). If the person hired for personal reasons (illness, other circumstances) could not perform the work for which he was hired, then he did not receive payment for the missed time.

The employee could protect his rights through actio locati, and the employer through actio conducti.

Such an agreement was not widespread, since in Rome almost every free person had his own slaves at his disposal, and there was no point in ordering work from outsiders.

Partnership agreement. Partnership (societas) is an agreement under which two or more persons combined property contributions or personal activities (or both) to pursue a common economic goal that does not contradict law and morality.

The main element of the partnership agreement was the achievement of a common economic goal that the partners were striving for. Depending on the purpose pursued by the members of the partnership, these partnerships were of the following types:

1) partnerships for joint residence and activities (societas omnium bonorum). This type involved the establishment of the common ownership right of all persons participating in the partnership to present, future and accidentally acquired property;

2) production, or profitable, partnerships (socie tas guaestus). Members of such partnerships pooled property intended for production activities, as well as all acquisitions received in the course of the relevant activities (with the exception of accidental income);

3) industrial, or partnerships of some kind (societas negotiationis). These partnerships were established when the members of the partnership contributed part of their property necessary to engage in a certain type of economic activity (for example, delivery of goods, construction of residential buildings). With this form of activity, the property necessary to achieve the production goal, as well as everything received in the course of the activity, was combined;

4) industrial, or partnerships of one business (societas unius rei). They were created to carry out a single event, for example, the construction of a separate facility. The agreement of the partners established the allocation of part of the property necessary to complete the work in order to obtain common income.

The partnership was not an independent subject of law, i.e., a legal entity. The subjects of law were comrades. Each of them acted on his own behalf, had rights and bore responsibilities.

All types of partnership agreements included an agreement on the contributions of partners. Contributions could be monetary, property or in the form of services (professional skills). Equality of contributions was not necessary. In the absence of a reference to the size of deposits in the agreement, they were assumed to be equal.

One of the important parts of the agreement was the participation of partners in income and expenses. If the contract did not contain an agreement on income and expenses, then they were distributed in equal shares. It was possible to conclude an agreement on conditions where one of the participants receives a larger share of the income and bears a smaller share of the costs. The other has a smaller share of income, but bears a larger share of expenses. At the same time, Roman law recognized that a partnership agreement was unacceptable, by virtue of which one of the participants participates only in receiving income and does not bear any expenses.

The risk of accidental loss of things - contributions under a partnership agreement fell on all parties to the agreement: in relation to individual things - from the moment of conclusion of the contract, in relation to things determined by generic characteristics - from the moment of their transfer. The risk of accidental loss of things received during the conduct of business by the partnership was also borne by all partners.

The partnership agreement gave rise to mutual rights and obligations.

The responsibilities of the comrades were as follows:

Contribution to the partnership of all property (for a partnership for joint residence and activities) or part of the property (for a partnership of another type);

Ownership and caring participation in the management and production activities of the partnership. The comrade was responsible to other comrades for any degree of guilt, including slight negligence. Negligence was determined by such a criterion as attitude to one’s own affairs. Guy points out that the comrade should show the same care that he usually shows in his affairs. Therefore, if a comrade treats business with the same carelessness with which he conducts his own affairs, he was not responsible;

Making your income available to other comrades;

Cost sharing.

Comrades had the following rights:

Require others to contribute contractual property to the partnership;

Participate in the management and economic activities of the partnership;

Receive income and reimburse expenses of the partnership.

To exercise his rights, each of the partners had a claim against the other partners, which was accompanied by dishonor for the person awarded in this claim.

Partnership agreements could be permanent, fixed-term or conditional. Fixed-term and conditional contracts were terminated upon expiration of the term or upon fulfillment of the conditions. All partnership agreements were terminated:

With the death of one of the partners, if the remaining parties to the agreement have not entered into a new partnership agreement;

As a result of the destruction of all property of the partnership;

Due to the scattered actions of comrades;

By court decision;

By agreement of all participants of the partnership;

In case of unilateral refusal of a partner from the contract. Unilateral refusal of a partner’s agreement is unacceptable if this is related to the desire to receive any income or if this will cause unforeseen damage to other partners. If the damage cannot be avoided, then the person terminating the agreement did not have the right to participate in the division of the partnership’s income, but was obliged to bear the full weight of the damage caused by his action.

Agency agreement. The contract of agency consists in the fact that the mandate holder obliged the mandate free of charge (as opposed to a lease agreement) to carry out any order of the mandate. The mandate could demand from the mandate holder to carry out the assignment with all the care of a good owner, that is, being responsible for losses that would occur even from his slight negligence; Moreover, the mandate holder was obliged to give the mandate everything that he acquired from the execution of the mandate.

The subject of the agreement was both legal actions and any services. Such actions and services should not have been illegal (for example, an order to commit theft). Most often, a contract of agency was concluded to manage the property of the principal, to perform strictly defined one-time actions, for example, to lend money to a third party; in this case, the principal usually acted as a guarantor.

The term of the agency agreement could be definite or indefinite. If the deadline was not specified, then the principal had the right to cancel the order, and the attorney had the right to refuse to fulfill the order at any time.

The duty of the attorney was to fulfill the assignment given to him in full and in accordance with the instructions of the principal. In some cases, the attorney was given the right to deviate from his instructions in the interests of the principal. The attorney could execute the assignment either personally or by asking a third party to do so: “Susceptum (mandatum) consummandum... est, ut aut per semet ipsum aut per ahum eandem rent mandator exsequatur” - “An accepted assignment must be fulfilled... so that personally or through another to carry out the assigned work” (J. 3. 26. 11). The attorney was obliged to convey to the principal the results of the execution, if any, and report to him.

The principal reimbursed the attorney for the costs incurred and provided the funds necessary for the execution of the order. Even damage suffered by the attorney due to the fault of the principal himself was compensated.

The agency agreement was terminated in the following cases:

Execution of instructions by an attorney;

Refusal by the attorney to execute the contract;

Death of one of the parties (principal or attorney). To protect the rights of both the principal and the attorney, the action actio mandati was used.

For the principal, this action was called actio mandati directa, and for the attorney, actio mandati contraria. If, by actio mandati directa, the attorney was found guilty, he was declared dishonored.

Unnamed contracts. Having formed an independent group of contracts, nameless contracts were used in a variety of specific situations. The most significant are three of their types: barter, precarity and the so-called appraisal agreement.

1. Barter - an agreement that mediated the exchange of a thing not for money, but for another thing.

2. The precarium legally secured the transfer of a thing by one person for the free use of another, who was obliged to return it at the first request of the transferor.

3. The appraisal agreement was applied in relation to a large trader with a small one. The first handed the item to the second, indicating its price. If the second person failed to sell the item at the specified price, it was subject to return; if the sale took place at a precisely determined price, all the proceeds from the sale were transferred to the owner; if the item was sold at a higher price, the seller kept the difference, transferring to the owner of the sold item a sum of money equal to a certain price.

Unnamed contracts arose when one person transferred the ownership of another thing or performed an action in order for the other person to provide another thing or perform some action.

An unnamed contract acquired legal force from the moment one party performed an action or transferred a thing. The party that fulfilled the obligation was initially presented with a claim to claim the thing transferred to the other party. Later, the party that performed the obligation brought a contractual claim (actio in factum) to force the other party to fulfill the obligation. In Justinian's codification, civil and praetorian actions were combined to protect claims arising from anonymous contracts.

Few people can distinguish a real contract from a consensual one, which is why confusion among partners often occurs.

How do such agreements differ, and what is a consensual agreement? Agreements concluded by the parties to any transaction are distinguished by type.

For the most part, whatever action is implied after signing a deal, this type of contract is concluded.

The type of consensual agreement is most common in legal practice, but we should not forget about real transactions.

Let's talk about this in more detail. Let's try to determine the difference between these types of contracts and their purposes.

General points

A consensual agreement is a civil law agreement that is concluded upon reaching mutual consent of the parties.

The agreement becomes valid immediately after signing by the parties. Most contracts are concluded as consensual.

In other words, consensual agreements are represented in a voluntary agreement of its participants regarding the described conditions in the content, which do not require any third-party confirming points, etc.

What you need to know

The basis of consensual transactions is the mutual trust of the parties; in other words, the fact of fulfillment of obligations under the contract may be absent, since the parties are mutually trusting of each other.

Proof of this is their signatures on the document. The term consensual agreement dates back to the Roman Empire. The word itself, translated from Latin, sounds like consensus.

After the final agreement of the parties on the terms of the transaction, a direct obligation to perform occurs.

If one of the parties committed obvious violations or deviations from the previously agreed terms of the transaction, then it may be held legally responsible for this.

For what purpose is it created?

A consensual agreement is created with the direct purpose of transferring the right of ownership of a thing or property.

Thus, a clear example is the purchase and sale agreement, when it began to be practiced in Roman law. This is also called an economic purpose.

The point is that the owner of the thing used this method as a legal way to transfer ownership to another person. For this he received a certain amount of money.

The legislative framework

According to Article 433 of the Civil Code of the Russian Federation, the reality of the contract is determined at the legislative level. Consensus is interpreted as residual.

To determine whether a given agreement is consensual, Article 454, paragraph 1 of the Civil Code of the Russian Federation will be useful. This article is more relevant to purchase and sale agreements.

If you need to establish consensuality when concluding a loan agreement, then you should refer to the contents of Art. 807 of the Civil Code of the Russian Federation.

In civil law, consensuality is a specific type of agreement. Achieving consensus (agreement) is the primary goal of this type of transaction.

It must be achieved even before the final signing of documents, i.e., an agreement.

The mechanization of the consensus structure by civil law is aimed at the regularity of their conclusions, in comparison with the real ones.

All this happens thanks to:

• two-way participation;
• equality of the parties;
• from the legal side, the correctness of the transaction.

What does consensual agreement mean?

A consensual agreement is the consent of its parties in voluntary execution, where there is no need to additionally document the performance of these parties in accordance with the prescribed terms of the transaction.

This type of agreement is classified as civil law, which is distinguished by its flexibility, universality of the transaction and ease of execution.

What can be attributed to direct signs of such transactions:

• type of transaction (oral, written or through a third party);
• it is possible to make changes to the content of the agreement if necessary;
• lack of guarantees at the time of signing the contract for each of the parties, which is simplicity;
• the rights and obligations of the parties are determined before signing the transaction.

Transactions such as purchase and sale, hiring of personnel, for contracts, etc. are consensual agreements. Consensual agreement form is available.

Essential conditions

Consensual agreements are simple to draw up. They do not require any special or separate conditions, other than the mutual consent of its parties.

It comes into full force from the moment the document is signed. The consensual agreement can be changed during its operation, that is, adjusted depending on the prevailing circumstances.

These conditions can be either changed by adjustment or simply supplemented with individual facts. You can involve a counterparty in participation if he was not present in the primary agreement.

However, no matter how simple it may seem to draw up, a consensual agreement is also concluded according to the rules.

It must include the following points:

• the actions of each party are determined;
• the order of execution for each of the parties to the agreement;
• period of execution;
• the responsibility that each party to the agreement will bear;
• availability of payment or other way of thanksgiving.

The form of the agreement itself is drawn up in accordance with the norms established by law:

From when does it come into effect?

A consensual agreement is considered concluded after it is signed by the parties. This indicates that mutual agreement has been reached on the terms of the contract.

Since such agreements can have various types of directions, the conditions for them differ in some aspects.

It could be:

• for construction contracts;
• premises rental agreements;
• alienation of objects or for contracting state needs.

The main areas where contracts of this kind are used are described.

How is it different from the real one?

The practice of lawyers distinguishes civil contracts:

• abstract;
• casual;
• real;
• consensual.

Regarding the last two, they are the most common. But don’t ignore the real type of transaction.

A consensual agreement differs significantly from a real one. First, if it reaches validity and legal force after an oral and then written signing of an agreement according to its terms, then for a real agreement it is necessary to perform an action.

For example, to verify the fact of transfer of the subject of the contract from one party to another. After which he becomes legally active and a prisoner.

Actions that characterize a real contract include chronology. In other words, the sequence of actions of the parties to the contract.

For example, when lending, when a loan agreement is first signed by the bank and the client, and then the client receives a money transfer or goods, according to the terms of the agreement.

After which the agreement comes into full force and the client becomes obligated to repay the loan amount borrowed from the bank for a certain period of time.

A real contract is also special in that if the document was signed, but the buyer never received the goods in hand, then the transaction is not considered fully concluded.

Validity

It all depends on the type of contract concluded. As a rule, in the document being drawn up, the parties preliminarily describe the conditions that determine the period of validity of the transaction (validity period).

But the opposite also happens, when there is no such moment, then the final moment comes for other reasons.

Purchase and sale agreements are in the nature of the moment of transfer of ownership of property from the first person (owner) to the second (buyer).

Thus, the moment of completion of the transaction arises immediately after the fact of transfer. Hire agreements work in a slightly different way.

Since several stages of execution are defined for them. In such transactions, the final date of cooperation is most often noted.

After which you can extend it. In some cases, due to the agreed conditions of force majeure or violations of these conditions, one of the parties may terminate the agreement.

Video: drawing up contracts

Loan agreements (the actual transaction), as in lending, have an exact date for completion of the transaction. In this case, diligence is mandatory, since you may be held liable.

As you can see, there are enough nuances. This fact should be disclosed in advance when drawing up the contract.

Example agreement

There are several main and most common examples of a consensual agreement:

Even having resorted to mutual agreement and trust with your partner, it is advisable to play it safe.

The direct disadvantage of consensual transactions is the lack of a guarantee of your partner’s performance.

Demanding urgency in execution will also be difficult, based on the type of transaction. It is also not possible to change the contract on your own, since both parties must give their consent to the changes.

On the one hand, a deal of this kind is the simplest to form and draw up, but for which party exactly is this beneficial?