What is the difference between a consensual agreement and a real one? Differences between a real contract and a consensual one

A consensual agreement is an agreement between two parties, which comes into force from the moment it is signed by the counterparties. To do this, it is only necessary to mutually agree on all the essential terms of the contract. In the presented material you can find out the difference between a real and a consensual contract.

Classification of various types and forms of contracts is possible not only according to their content, but also according to the moment at which the mutual rights and obligations of the counterparties arise. On this basis, contracts are divided into real and consensual, and The legal significance of such division is regulated in Art. 433 of the Civil Code of the Russian Federation.

This rule of law determines the following moments for the entry into force of contractual relations:

• From the moment of receipt of acceptance of the offer, i.e. after receiving a positive response on all essential terms of the proposal to conclude an agreement (in practice, this is expressed by signing the agreement on both sides);
• From the moment of transfer of property or monetary assets, if to carry out such transactions, the law requires not only the signing of a bilateral agreement, but also the transfer of property.

Note! In Art. 433 of the Civil Code of the Russian Federation provides for another special option for the emergence of rights and obligations - during state registration of transactions with real estate. However, this fact is associated only with the emergence of rights and obligations for third parties.

The practical application of the conditions of consensual and real contracts can be found every day, since all transactions belong to one of these groups. The key difference between these types of contracts is the need to transfer property between the counterparties when concluding an agreement.

From what moment is it considered concluded?

The legal significance of determining the moment when a contract is considered concluded does not depend on the will of the parties. For each type of transaction, essential and additional terms of agreements, procedures and rules for drawing up agreements, etc. are provided. If the basic rules of a certain transaction indicate that the contract comes into force upon its signing, the parties cannot arbitrarily change the legal requirement.

The consensual agreement comes into force from the moment it is signed by both parties, which implies reaching agreement on all essential terms of the transaction. For different types of contracts, the list of essential conditions may differ:

• For a construction contract - the subject and price of the contract, as well as the timing of the work;
• For the rental of buildings - the subject and price of the rental relationship;
• For the alienation of real estate - the subject and price of the contract;
• For a contract for government needs - the subject and price of the contract, the deadline for completing the work, as well as ways to ensure the obligations of counterparties.

Note! Until the partners agree on all the essential terms of the contract, regulated by law, the rights and obligations of the parties cannot arise. This rule does not apply to optional (additional) terms of contracts; in the absence of agreement on one of such provisions, it may be excluded from the text of the contract.

Most types of agreements listed in the norms of the Civil Code of the Russian Federation belong to the consensual type of agreements. To conclude them, it is sufficient for the parties to sign a mutual agreement. Certain types of transactions may provide for a mixed nature of the emergence of rights:

• Donation transaction - implemented by concluding a real contract (i.e., transfer of property will be required), however, with the promise of a donation, a consensual agreement is concluded;
• A storage agreement - as a general rule, is of a real nature (i.e., rights and obligations will arise only after the item is transferred for storage), however, concluding a similar transaction with a professional participant is a consensual agreement.

Note! For real types of contracts, it is also necessary to come to agreement on all essential terms of the transaction and sign a mutual bilateral document. However, without the actual transfer of property and monetary assets, it will remain a written document without real legal force.

Compulsion to transfer an item or money under a real contract is unacceptable even in court. A typical example would be a loan agreement between citizens. If the parties have reached an agreement on all the terms of the contract (loan amount, terms of use of money, amount of interest, etc.), rights and obligations will arise only upon the actual transfer of funds to the borrower.

From this moment on, the borrower has the right to use the money at his own discretion during the term of the agreement and. at the same time, the obligation to repay funds within the agreed period or at the request of the lender. The party that transferred the money under the terms of the loan has the right to demand the return of funds on the terms specified in the agreement. Thus, in this case, the very fact of the existence of a written agreement will not affect the legal relations of the parties in any way until the transfer of the subject of the transaction - the borrowed funds - takes place.

Which contracts are not consensual?

To determine which types of contracts are not consensual, it is enough to analyze the norms of part two of the Civil Code of the Russian Federation, dedicated to certain types of transactions. Each agreement under which the emergence of the rights and obligations of counterparties is conditioned by the actual transfer of property will be real:

• Loan agreement – ​​actual transfer of funds is required;
• Gift agreement (except for the agreement of promise of a gift) – the actual transfer of the gift is required;
• Vehicle rental agreement – ​​it is necessary to actually transfer the car to the lessee.

As a rule, the parties to such transactions duplicate in the terms of the contract the rule on its entry into force only from the moment of actual transfer of the subject of the agreement.

Meanings and criteria for classifying contracts. Natural agreements. Consensual contracts and real contracts.

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.

In this chapter we should 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);

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 gaming and betting, these traditionally include any agreements under which either party has missed the statute of limitations.

For such obligations, it is directly stated that it is impossible to demand back what was performed outside the limitation period 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 when rights and obligations arise, 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 would be desirable 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 in general is necessary, only an analysis of the legal definition is not enough.

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. Consensual agreement The conclusion of such an agreement can be carried out even in the absence of counterparties - if there is an intermediary, the parties may not communicate directly with each other. These types of agreements include transactions such as employment agreements, purchase and sale agreements, mandates and partnership agreements. Thus, a consensual agreement is a voluntary agreement between the parties in the same matter, which does not require any formalities. The basis of the contract, which is called consensual, is based on mutual trust of the parties to the contract.

Real and consensual agreement - main differences

In this regard, practicing lawyers and simply parties to legal relations in a transaction may have a question about the possibility of establishing the real nature of the contract by establishing its relevant provisions. Supporters of this position refer to the principle of freedom, and the will of the parties, as one of the fundamental principles of civil law. However, in this case, one should refer to the provisions of the same Article 433 of the Civil Code of the Russian Federation.

Attention

It establishes precisely the principle of free will of the parties, but makes reference to the fact that such a transaction should not contradict the law. Providing for a procedure other than that established by law for concluding and executing a contract is unlawful. Possibility of changing the nature of the contract by the parties. The parties cannot determine the moment of validity of the transaction on their own, making it real.

However, the absence of such an opportunity does not in any way reduce the rights of counterparties.

Consensual and real contract

A real agreement is not legitimized by the consent of the participants. It is considered valid upon receipt by one party of the thing. A real contract and a consensual agreement have significant differences:

• participants must reach consensus on the terms;
• one party must receive the thing, object or property.

Chronology is the main indicator of the reality of the contract.

An example of this would be applying for a bank loan or loan. According to Art. 433 of the Civil Code of the Russian Federation differentiates between real and consensual transactions. The reality of the contract is established by law, the interpretation of consensuality is residual.
What does a consensual agreement mean? A consensual agreement is the voluntary consent of the participants without their acceptance of the conditions for documenting the result. The agreement is a civil law agreement and is distinguished by its universality, flexibility and simplicity.

What are the differences between a real contract and a consensual contract?

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.

Lease agreement - real or consensual

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When agreeing and mutually promising to perform certain actions, each of the obliging parties relies on the honesty of its partner and bases its calculations on mutual interest in the agreement. Consensual and real contracts Consensual contracts arose later than other types of contracts and were most important in the economic life of Ancient Rome. The use of consensual contracts indicates the great development of economic turnover and legal technology at the end of the republic.

Consensual contracts could be concluded by correspondence and 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” (Modestin).

2. real and consensual transactions

Depending on the moment at which they occur, transactions can be real and consensual. Real transactions (from the Latin “res” thing) are considered completed when two conditions are simultaneously met: a) there is an agreement, an expression of will has been made in the form required by law; b) the thing has been transferred. Examples of real transactions are loan agreements (clause 1 of Article 807

Important

Civil Code), storage (clause 1 of Article 886 of the Civil Code), insurance (clause 1 of Article 957 of the Civil Code), transportation of cargo (Article 785 of the Civil Code). All of them are considered concluded only after one of the parties has transferred the relevant property to the other. When borrowing, it is necessary to issue the loan amount to the borrower, when storing the thing, transferring the item to the custodian, when insuring, paying the insurance premium or its first installment, when transporting, handing over the cargo to the carrier.

To conclude consensual transactions (from lat.

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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.
THE CONTENT OF THE ARTICLE:

• 1 General provisions on real and consensual agreements
• 2 How does a real contract differ from a consensual contract? Examples of consensual and real contracts

General provisions on real and consensual agreements The law does not provide a direct indication of the differences between the types of contracts under consideration. The question is theoretical, and legal theorists have long deduced all possible distinguishing features of a real and consensual transaction.
The peculiarity of consensual contracts was that if in other types of contracts, in addition to the agreement, some other moment was required to establish an obligation (a word, a letter, the transfer of a thing), then in consensual contracts reaching an agreement was not only necessary, but also a sufficient moment to create an obligation. Damage or losses If we try to explain it simply, then Losses = Real damage + Expenses for restoring violated rights + Lost profits Let's consider each component of the formula. Damage In this case, it is necessary to calculate the cost of restoration repairs and subtract the percentage of wear and tear.
The peculiarity of consensual contracts was that if in other types of contracts, in addition to the agreement, some other moment was required to establish an obligation (a word, a letter, the transfer of a thing), then in consensual contracts reaching an agreement was not only necessary, but also a sufficient moment to create an obligation. Legal Club Conference But this is all theory, but specifically can the Civil Code be tied to the fact that the lease agreement is consensual? And also, if the parties to the agreement make the lease agreement real, that is, they tie the moment of its conclusion not to the date of signing, but to the date of transfer of the property, then will such a condition be legal? The message was edited by reywal: November 26, 2007 - 13:52 newbie November 26, 2007 reywal The reality or consensuality of a contract is determined by the norms of the Civil Code, and not by the agreement of the parties.

Real and consensual deal difference

A consensual agreement (from the Latin consensus - agreement) is a civil contract that is recognized as concluded from the moment of agreement. Consensual transactions from lat. consensus - agreement - these are such transactions, many transactions for the performance of work and provision of services (works contract. Real contract. [edit The real contract comes into force from the moment of transfer of the object. Lease agreement - real or consensual The specified criterion characterizes the moment the contract comes into force A real contract can be defined as a transaction that comes into force from the moment of transfer of a thing or the implementation of another action provided for by the terms of the transaction. Legal theory determines an approximate list of real contracts.
The difference between the moment of signing a transaction (its conclusion) and the moment of transferring the thing and carrying out the action can be very significant.
The difference between the moment of signing a transaction (its conclusion) and the moment of transferring the thing and carrying out the action can be very significant. For example, an agreement may be signed on January 1, and the item itself may be transferred on May 1. The real contract will come into force (and, therefore, the parties will have mutual rights and obligations) only on May 1. Examples of real contracts are loans and storage. Thus, storage begins exclusively at the moment of transfer of its object. A consensual agreement is considered concluded, on the contrary, from the moment the parties reach an agreement on all essential points of the transaction.
The parties may not agree on some points, but this will not affect the validity of the transaction even if such points do not relate to the main terms of the agreement. Examples of consensual agreements are supply, purchase and sale agreements.
The cost of restoration repairs includes: The cost of dismantling the damaged coating The cost of installing a new coating of similar quality to the damaged one Cost of materials Remember! Calculation of damage must be carried out at market prices for materials and work! To date, the specialists of our appraisal company have made a large number of calculations to assess property damage as a result of any actions of third parties. For example, we have developed our own software to calculate flood damage. Free legal advice Most civil law contracts are consensual (for example, a purchase and sale agreement, a rental agreement, etc.). A consensual agreement does not require any conditions for execution and execution, other than the mutual consent of the parties to its conclusion.

According to the date of entry into force of the agreement, the consensual and real agreement are determined. In the first case, the legality of the contract occurs upon the transfer of the object or the commencement of the action. A consensual transaction is considered completed upon agreement by the participants on all contractual points. The fact of receipt (rent, purchase, sale) of property is indicated in the text of the agreement. The main criteria for the separation of agreements are the time of the actual occurrence of the circumstance and the legal fact that led to the conclusion of the agreement. According to experts, a real contract is less common than a consensual one.

Real contract and consensual: differences

Lawyers note that there are abstract, causal, consensual and real contracts. The last two are used more often in practice.

A consensual agreement acquires legality at the moment the parties select a common solution to the essential terms of the transaction and formalize them legally.

A real agreement is not legitimized by the consent of the participants. It is considered valid upon receipt by one party of the thing. A real contract and a consensual agreement have significant differences:

• participants must reach consensus on the terms;
• one party must receive the thing, object or property.

Chronology is the main indicator of the reality of the contract. An example of this would be applying for a bank loan or loan. According to Art. 433 of the Civil Code of the Russian Federation differentiates between real and consensual transactions. The reality of the contract is established by law, the interpretation of consensuality is residual.

What does a consensual agreement mean?

A consensual agreement is the voluntary consent of the participants without their acceptance of the conditions for documenting the result. The agreement is a civil law agreement and is distinguished by its universality, flexibility and simplicity.

The features of a consensual agreement include:

• variable form of conclusion - oral, written, through a counterparty or through correspondence;
• the possibility of adjustments, additions, changes to the terms of the transaction by the parties, even in the interests of a third party;
• simplicity of signing, in which there are no guarantees for the performance condition;
• determination of the rights and obligations of the parties, ways of their implementation until the signing of the contract.

A consensual agreement is a transaction involving purchase and sale, hiring of personnel, supply of products, and execution of a contract.

Consensual agreement in civil law

A consensual agreement is a specific type of interaction between the parties. It involves searching for a common solution (consensus) at the time of final signing. The structure of the mechanism of a consensual agreement in civil law is focused on the regularity of their conclusion in comparison with real ones, thanks to:

• bilateral type of contract;
• equal responsibilities of participants;
• legal correctness of the transaction - purchase, lease, supply.

The provisions of the Civil Code of the Russian Federation (clause 1 of Article 454) will help to establish that the sale and purchase agreement is consensual. The seller's obligation to transfer the goods and receive monetary compensation for it is considered by law. A loan consensual agreement is established in the same way - this is reflected in Art. 807 Civil Code (thing or money is transferred into ownership).

The division of contracts into real and consensual improves the mechanism for their implementation, regulates the relationship between the parties, improves implementation processes and creates a theoretical basis for recognizing transactions as legal.

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 in general is necessary, only an analysis of the legal definition is not enough.