Failure to comply with a simple written form of a transaction is a violation of the law by the parties. It entails consequences regarding limitations in the means of evidence.
What is the difficulty
It would seem that Art. 162 of the Civil Code of the Russian Federation is unambiguous, but in practice a number of questions arise. In particular, when is a form considered broken? What documents are considered sufficient evidence? This is not all; there are other difficulties arising in judicial practice.
Writing
A written transaction is a document that expresses the will of the parties regarding their obligations. The choice of this form helps to avoid difficulties or reduce them if a dispute arises.
Drawing up a documented transaction involves several options:
- the parties draw up a single document;
- The agreement is concluded by prior correspondence and may include several documents.
How to prevent non-compliance with the simple written form of the transaction affect its participants?
Include in the document the essential conditions without which the agreement is not considered to be concluded, and also do not forget about the details.
Document generation options
Writing is not limited to paper sheets. The parties have the right to fix their agreements by telegraph, teletype, other types of fixation. Recently, electronic documents have been distributed. There is a law regulating the procedure for confirming their validity.
So the participants in the civil turnover are left with a wide range of means of presenting transactions. If only there was an opportunity to confirm the authenticity of the document.
Where writing is required
Small transactions are allowed to be concluded orally, but where serious property risks are involved, the obligation to provide documentation immediately appears:
- if the parties - a citizen and legal entity;
- if the price of the agreement is not less than 10 thousand rubles;
- if the written form is expressly established by law, for example, a loan agreement.
Art. 162 of the Civil Code of the Russian Federation refers to the opinion of the parties about the need for writing where there is no such imperative.
During the execution of the contract, actions that qualify as transactions may be performed, but the law allows not to issue unnecessary securities, unless otherwise required.
If we take the contracts proposed by the Civil Code, then almost all of them should be concluded in writing. Therefore, not all actions in the course of their implementation are assessed as non-compliance with a simple written form of the transaction.
Types of Written Transactions
Theory and practice distinguish two of their types:
- transactions made in simple writing;
- notarized transactions.
Notarization means the signing of an agreement in the presence of a notary public who prints the agreement on a special, secure, numbered form, puts his seal and signature in addition to the details of the parties.
All other documented transactions are considered to be concluded in simple written form.
Their correlation is as follows: the notarial way of registration is acceptable in any situation, even when it is not provided. A simple form cannot replace it.
Legal requirements
Despite the high degree of freedom of parties to the agreements, the law may impose additional requirements on transactions in a simple form. Their ignoring or violation is considered non-compliance with a simple written form of the transaction. What are they?
For example, a power of attorney issued by a legal entity is certified by a seal.
Acts of executive authorities oblige the parties to adhere to the standard form of the contract in a number of situations. A template is being developed that everyone should adhere to. The most common option is agreements between consumers and utility providers. I must say that there are attempts to introduce their own additions, but with the activity of citizens through complaints to supervisory authorities are thwarted.
Thus, attention should be paid to the array of by-laws, the existence of which ordinary citizens do not even know.
What the intruder will face
The law provided for two options for the consequences of non-compliance with a simple written form of the transaction:
- the transaction is considered invalid;
- witness statements do not serve as evidence of its commission and of the contents of its conditions.
Invalidity of transactions
If the transaction is declared invalid, then the parties shall return to their original position. The inability to achieve it is compensated by cash payments or transfer of property. Offsetting is not prohibited.
For example, there was a deal to sell a car. The invalidity of the transaction, proven in court, means that the money and the car will be returned to the original owners. It is used as a consequence, in the case of a direct indication of the law.
At the same time, it is possible to obtain legal recognition of a transaction in a court, provided that it meets the interests of the parties. In a trial, one objection is not enough. The invalidity of transactions is overcome by a lawsuit.
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By the way, the invalidity of transactions takes two forms:
- the law declares it disputable, i.e. potentially invalid;
- the law invalidates it automatically from the moment it is concluded, for example, loan agreements.
Features of litigation
As mentioned above, violation of the form or its ignoring entails a ban on attracting witnesses. It should be noted that it is not ruled out to use the evidence of third parties or the explanations of the parties in the case.
However, the focus is primarily on documents: correspondence, acts, any other sources of information about the transaction and its content. Material evidence and expert opinions are not excluded. Procedural codes provide an exhaustive list of evidence classified as written.
At the same time, the ban cannot be called absolute, in particular, witnesses are involved in disputes in the field of retail, storage. Reservations are scattered across various articles of the Civil Code. They are united by the status of participants - cases concern mainly consumer citizens.
Truth is not the only criterion, Art. 162 of the Civil Code of the Russian Federation with comments provides other justifications, due to which the legislator introduced an exception to the rule.
Conclusion
In other countries, in particular, in Holland, the opposite rule is accepted - the parties are entitled to attract witnesses. What is the reason for this difference? In Russia, there is a tendency toward bureaucratization and formalization of life, which is why this formulation is accepted.
Indirectly, the conclusion is confirmed by the practice of arbitration and civil proceedings - judges try to minimize the use of evidence. In the criminal process, on the contrary, despite the fact that much more serious issues are being solved there.
Thus, the issue under discussion is characterized by numerous nuances.