1. Delivery is the delivery of a thing to the acquirer, as well as delivery to a carrier for sending to the acquirer or delivery to a communications organization for forwarding to the acquirer of things alienated without the obligation of delivery.
The thing is considered delivered to the acquirer from the moment it actually comes into the possession of the acquirer or the person indicated by him.
2. If at the time of concluding an agreement on the alienation of a thing it is already in the possession of the acquirer, the thing is recognized as transferred to him from that moment.
3. The transfer of a bill of lading or other document of title to it is equivalent to the transfer of a thing.
Commentary on Article 224 of the Civil Code of the Russian Federation
1. The transfer of a thing as such is a transaction aimed at transferring ownership. The Civil Code in various articles associates various legal consequences with the transfer of ownership. For example, the transfer of ownership is associated with the conclusion of an agreement (clause 3 of Article 358 of the Civil Code), the transfer of rights certified by a bearer security (clause 1 of Article 146 of the Civil Code), etc. Paragraph 2 of clause 1 of Art. 224 of the Civil Code also uses the concept of ownership of a thing. However, the Civil Code does not define this concept anywhere.
2. Paragraph 1 of the commented article contains a “two-story” description of the transfer of things. Paragraph 1 of this clause describes the transfer as “delivery”, and para. 2 - what should be understood by delivery. According to this article, delivery represents the actual receipt of the thing into possession.
Handing over a thing to someone presupposes an act of will both on the part of the person transferring the thing and on the part of the person receiving it. You cannot give a thing to someone who does not want to accept it. Likewise, the delivery of a thing presupposes that the recipient of the thing is aware that he is receiving possession of it. If the latter does not know about this (for example, when the thing is thrown to him), the thing does not actually come into his possession and cannot be considered delivered. Under such conditions, it cannot be considered that the transfer has taken place.
3. All rules included in the commented article are imperative. They do not give the parties to the contract the right to establish any other provisions on relevant issues. The appropriateness of this position of the Civil Code can be assessed differently, but it is expressed completely unambiguously.
4. The commented article indicates that the object of transfer is a thing. Article 128 of the Civil Code classifies money and securities as things, and Art. 130 of the Civil Code divides things into immovable and movable. The rules contained in the commented article apply to all things, including immovable ones.
There is a discrepancy between the rules of the commented article and Art. 556 Civil Code. The latter are devoted to the transfer of real estate in a real estate purchase and sale agreement. Clause 1 of Art. 556 of the Civil Code provides that the transfer of real estate by the seller is carried out under a transfer deed (or other transfer document) signed by the parties. Such an act is not mentioned in the commented article. Moreover, in accordance with paragraph. 2 p. 1 art. 556 of the Civil Code, delivery of real estate to the buyer is not enough. Signing of the transfer document is also required. This does not comply with the rules established in paragraph 1 of the commented article.
It is very unfortunate that such an obvious discrepancy between the norms of the Civil Code exists on such an important issue for economic turnover.
5. Paragraph 2 of paragraph 1 of the commented article uses the concept of ownership of a thing. This concept is also found in a number of other articles of the Civil Code. However, the Civil Code does not define this concept. For more information about ownership, see paragraph 3 of the comment. to Art. 234.
6. Paragraph 1 of the commented article uses the technique of establishing a legal fiction, stipulating that handing over a thing to a carrier for sending to the acquirer or handing it over to a communications organization for forwarding to the acquirer is recognized as a transfer of the thing (provided that it was alienated without the obligation of delivery). The fictitiousness of such a decision lies in the fact that in these cases the thing does not actually come into the possession of the acquirer, as required by paragraph. 2 paragraph 1 of the commented article. Moreover, the thing is rented to other persons, who become the owners.
7. Paragraph 2 of the commented article introduces another legal fiction for cases when an item is acquired that, even before the conclusion of the relevant agreement, is in the possession of the future acquirer. Today this occurs quite often, especially during the so-called redemption of property (in the process of privatization, etc.). The Civil Code establishes that in such cases neither transfer nor delivery of the thing to the acquirer is required. They, however, are impossible under such conditions. The considered paragraph of this article establishes that the corresponding thing is recognized as transferred to the acquirer from the moment the contract is concluded. Of course, this is fiction. However, it has very solid historical roots: this problem was solved in this way back in Ancient Rome.
8. Paragraph 2 of the commented article talks about things. In the light of Art. 130 of the Civil Code, this means that it applies to both movable and immovable things. Here there is also a discrepancy with the rules of Art. 556 Civil Code. According to them, when selling real estate to a person who already owns it, a deed of transfer is required. According to the commented article, the property is considered transferred to him from the moment the alienation agreement is concluded.
9. Paragraph 3 of the commented article introduces another legal fiction in the area of ownership of the transferred thing. It establishes that the transfer of a document of title to it is equivalent to the transfer of a thing. The relevant item may remain in the possession of the carrier under a contract for the carriage of goods by sea or in the possession of some other person. But in accordance with the rule under consideration, the transfer of a document of title is equivalent to the transfer of cargo.
The Civil Code speaks about the document of title in general, indicating the bill of lading as one of its types. In a developed market economy, there are various types of documents of this kind (for example, warehouse receipts of commodity warehouses, etc.). Today, only one bill of lading has practical significance. The bill of lading is transferred subject to the following rules. A personal bill of lading can be transferred using personal endorsements or in another form in compliance with the rules established for the assignment of a claim. An order bill of lading can be transferred using personal or blank endorsements. A bill of lading to bearer can be transferred by simple delivery (clause 3 of Article 148 of the Code of Labor and Trademarks).
Judicial practice: sentences and punishment under Art. 224 of the Criminal Code of the Russian Federation
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Another commentary on Article 224 of the Civil Code of the Russian Federation
1. Transfer of a thing (Latin - traditio) represents the actions of the owner or a person authorized by him to deliver the subject of the contract, on the one hand, and the actions of the acquirer (the person authorized by him) to accept this subject, on the other hand. Such actions equate to the delivery of an item to a carrier for shipment to the acquirer or delivery to a communications organization for forwarding to the acquirer of things alienated without the obligation of delivery, as well as the transfer of a bill of lading or other document of title to it.
The transfer of a thing is considered to have taken place if the thing actually came into the possession of the acquirer or the person indicated by him. For this reason, the thing is recognized as transferred to the acquirer from the moment it actually comes into his possession and in cases where, by the time the agreement on the alienation of the thing was concluded, it was already in his possession. This is possible, for example, when concluding an additional agreement between the tenant and the lessor on the purchase of the leased property in accordance with clause 2 of Art. 624 Civil Code of the Russian Federation.
2. The transfer must be aimed at fulfilling the obligation arising from the agreement on the transfer of property into ownership. For this reason, the transfer of an item for other purposes, for example, to familiarize itself with its consumer properties, cannot be recognized as a transfer entailing a transfer of ownership.
3. Sometimes the transfer of an item may require special registration. So, in accordance with Art. 556 of the Civil Code of the Russian Federation, the transfer of real estate by the seller and its acceptance by the buyer is carried out according to a transfer deed or other transfer document signed by the parties. Unless otherwise provided by law or contract, the seller’s obligation to transfer real estate to the buyer is considered fulfilled after the delivery of this property to the buyer and the signing of the relevant transfer document by the parties. Failure of one of the parties to sign a document on the transfer of real estate on the terms stipulated by the contract is considered a refusal, respectively, of the seller’s obligation to transfer the property, and the buyer’s refusal of the obligation to accept the property.
A similar transfer procedure is necessary when executing a contract for the exchange of real estate, as well as when transferring real estate to trust management (clause 2 of Article 1017 of the Civil Code). Special requirements for registration of the transfer are also contained in the provisions of the Civil Code of the Russian Federation on the sale of an enterprise as an object of civil rights (Article 563).
Clause 2 of Article 224 of the Tax Code of the Russian Federation
The tax rate is set at 35 percent for the following income:
(Paragraph excluded by Federal Law No. 57-FZ dated 29.05.2002)
the cost of any winnings and prizes received in competitions, games and other events for the purpose of advertising goods, works and services, insofar as they exceed the amounts specified in paragraph 28 of Article 217 of this Code;
(Paragraph no longer in force - Federal Law dated July 24, 2007 No. 216-FZ)
interest income on deposits in banks located on the territory of the Russian Federation, income in the form of interest (coupon) on circulating bonds of Russian organizations denominated in rubles, the tax base for which is determined in accordance with Article 214.2 of this Code; (As amended by Federal Law dated April 3, 2017 No. 58-FZ)
the amount of savings on interest when taxpayers receive borrowed (credit) funds in excess of the amounts specified in paragraph 2 of Article 212 of this Code; (As amended by Federal Laws No. 112-FZ dated August 20, 2004; No. 216-FZ dated July 24, 2007)
income in the form of fees for the use of funds of members of a credit consumer cooperative (shareholders), as well as interest for the use by an agricultural credit consumer cooperative of funds raised in the form of loans from members of an agricultural credit consumer cooperative or associated members of an agricultural credit consumer cooperative, the tax base for which is determined in accordance with Article 214.2.1 of this Code. (Paragraph introduced - Federal Law dated July 27, 2010 No. 207-FZ; as amended by Federal Law dated November 23, 2015 No. 320-FZ)
