Article 158 of the Civil Code of the Russian Federation. Transaction form (current version)

Commentary to Art. 158 Civil Code of the Russian Federation

1. Considering transactions as actions of persons, one cannot help but admit that these actions must be objectified, i.e. expressed by the subject “outside”. The method of such expression is the form of the transaction (what the transaction is “clothed in”). The commented article provides for two forms of transactions: oral and written.

2. Oral form is not only the exchange of spoken words (“For sale?”; “Yes”; “I’m buying”), but also the performance by a person of active (conclusive) actions understandable to the addressee: boarding public transport, transferring a coat to the wardrobe, purchasing goods in vending machines, etc. Silence in civil law is considered as a lack of expression of will (“no”), with the exception of the conditions mentioned in the article in question.

3. The written form can be of two types: simple and notarial (qualified).

The science.

The form serves as a frame for outlining the law.

D.I.Meyer

Arbitrage practice.

A participant’s application to leave the company is a transaction aimed at changing the constituent agreement, which, by virtue of paragraph 1 of Article 452 of the Civil Code of the Russian Federation, must be drawn up in the same form as the agreement. Thus, in accordance with the law, this transaction can only be concluded in writing (Resolution of the Supreme Arbitration Court of the Russian Federation dated January 18, 2005 N 11809/04).

Civil Code of the Russian Federation Part 1

Chapter 9. TRANSACTIONS

Concept, types and form of transactions

Article 153. Concept of a transaction

Transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.

Article 154. Contracts and unilateral transactions

1. Transactions can be bilateral or multilateral (agreements) and unilateral.

2. A transaction is considered unilateral, for the completion of which, in accordance with the law, other legal acts or agreement of the parties, it is necessary and sufficient to express the will of one party.

3. To conclude an agreement, it is necessary to express the agreed will of two parties (bilateral transaction) or three or more parties (multilateral transaction).

Article 155. Obligations under a unilateral transaction

A unilateral transaction creates obligations for the person who made the transaction. It can create obligations for other persons only in cases established by law or by agreement with these persons.

Article 156. Legal regulation of unilateral transactions

The general provisions on obligations and contracts are accordingly applied to unilateral transactions, since this does not contradict the law, the unilateral nature and essence of the transaction. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

Article 157. Transactions made under conditions

1. A transaction is considered completed under a suspensive condition if the parties have made the emergence of rights and obligations dependent on a circumstance for which it is unknown whether it will occur or not.

2. A transaction is considered completed under a severable condition if the parties have made the termination of rights and obligations dependent on a circumstance regarding which it is unknown whether it will occur or not.

3. If the occurrence of a condition was prevented in bad faith by a party for whom the occurrence of the condition is unfavorable, then the condition is recognized as having occurred.

If the occurrence of a condition was facilitated in bad faith by a party to whom the occurrence of the condition is beneficial, then the condition is recognized as not having occurred.

Article 157.1. Consent to make a transaction

(introduced by Federal Law No. 100-FZ dated May 7, 2013)
1. The rules of this article apply unless otherwise provided by law or other legal act.

2. If the consent of a third party, a body of a legal entity or a state body or a local government body is required to complete a transaction by force of law, the third party or the relevant body shall inform the person who requested the consent or another interested person about its consent or refusal within a reasonable time. period after receiving the application of the person requesting consent.

3. The preliminary consent to carry out a transaction must define the subject of the transaction to which consent is given.

Upon subsequent consent (approval), the transaction to which consent has been given must be indicated.

4. Silence is not considered consent to complete a transaction, except in cases established by law.

Article 158. Form of transactions

1. Transactions are made orally or in writing (simple or notarial).

2. A transaction that can be concluded orally is considered to be the will to complete the transaction.

3. Silence is recognized as an expression of the will to complete a transaction in cases provided for by law or agreement of the parties.

Article 159. Oral transactions

1. A transaction for which a written (simple or notarial) form is not established by law or agreement of the parties may be concluded orally.

2. Unless otherwise established by agreement of the parties, all transactions executed upon their very completion may be made orally, with the exception of transactions for which a notarial form has been established, and transactions, failure to comply with the simple written form of which entails their invalidity.

3. Transactions in pursuance of an agreement concluded in writing may, by agreement of the parties, be made orally, if this does not contradict the law, other legal acts and the agreement.

Article 160. Written form of a transaction

1. A transaction in writing must be concluded by drawing up a document expressing its contents and signed by the person or persons entering into the transaction, or persons duly authorized by them.

Bilateral (multilateral) transactions can be carried out in the ways established by paragraphs 2 and 3 of Article 434 of this Code.

The law, other legal acts and agreement of the parties may establish additional requirements that the form of the transaction must comply with (execution on a certain form, sealed, etc.), and provide for the consequences of non-compliance with these requirements. If such consequences are not provided for, the consequences of failure to comply with the simple written form of the transaction are applied (clause 1 of Article 162).

2. When making transactions, the use of facsimile reproduction of a signature using mechanical or other copying means, an electronic signature or another analogue of a handwritten signature is permitted in cases and in the manner provided for by law, other legal acts or agreement of the parties. (as amended by Federal Law dated 04/06/2011 N 65-FZ)

3. If a citizen, due to a physical disability, illness or illiteracy, cannot sign with his own hand, then, at his request, another citizen can sign the transaction. The signature of the latter must be certified by a notary or other official who has the right to perform such a notarial act, indicating the reasons why the person making the transaction could not sign it with his own hand.

However, when making transactions specified in paragraph 4 of Article 185.1 of this Code, and powers of attorney for their execution, the signature of the one who signs the transaction can also be certified by the organization where the citizen works, who cannot sign with his own hand, or by the administration of the inpatient medical institution in which he is undergoing treatment. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

Article 161. Transactions made in simple written form

1. Must be made in simple written form, with the exception of transactions requiring notarization:

1) transactions of legal entities among themselves and with citizens;

2) transactions of citizens among themselves for an amount exceeding ten thousand rubles, and in cases provided for by law - regardless of the amount of the transaction. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

2. Compliance with a simple written form is not required for transactions that, in accordance with Article 159 of this Code, can be concluded orally.

Article 162. Consequences of failure to comply with the simple written form of the transaction

1. Failure to comply with the simple written form of a transaction deprives the parties of the right in the event of a dispute to refer to testimony in support of the transaction and its terms, but does not deprive them of the right to provide written and other evidence.

2. In cases directly specified in the law or in the agreement of the parties, failure to comply with the simple written form of the transaction entails its invalidity.

3. Invalid as of September 1, 2013. — Federal Law of 05/07/2013 N 100-FZ.

Article 163. Notarization of a transaction

(as amended by Federal Law dated 05/07/2013 N 100-FZ)
1. Notarization of a transaction means checking the legality of the transaction, including whether each party has the right to complete it, and is carried out by a notary or an official who has the right to perform such notarial action, in the manner prescribed by the law on notaries and notarial activities. (Clause 1 as amended by Federal Law dated 05/07/2013 N 100-FZ)

2. Notarization of transactions is mandatory:

1) in cases specified in the law;

2) in cases provided for by agreement of the parties, at least by law, this form was not required for transactions of this type.

3. If notarization of a transaction in accordance with paragraph 2 of this article is mandatory, failure to comply with the notarial form of the transaction entails its nullity. (Clause 3 introduced by Federal Law dated 05/07/2013 N 100-FZ)

Article 164. State registration of transactions

(as amended by Federal Law No. 100-FZ dated 05/07/2013)
1. In cases where the law provides for state registration of transactions, the legal consequences of the transaction occur after its registration.

2. A transaction providing for a change in the terms of a registered transaction is subject to state registration.

Article 165. Consequences of evading notarization or state registration of a transaction

(as amended by Federal Law No. 100-FZ dated 05/07/2013)
1. If one of the parties has fully or partially executed a transaction requiring notarization, and the other party evades such certification of the transaction, the court, at the request of the party that executed the transaction, has the right to recognize the transaction as valid . In this case, subsequent notarization of the transaction is not required.

2. If a transaction requiring state registration is completed in the proper form, but one of the parties avoids registering it, the court, at the request of the other party, has the right to make a decision to register the transaction. In this case, the transaction is registered in accordance with the court decision.

3. In the cases provided for in paragraphs 1 and 2 of this article, a party that unreasonably evades notarization or state registration of a transaction must compensate the other party for losses caused by the delay in completing or registering the transaction.

4. The limitation period for the claims specified in this article is one year.

Article 165.1. Legally Relevant Messages

(introduced by Federal Law No. 100-FZ dated 07.05.2013)
1. Statements, notifications, notices, demands or other legally significant messages with which the law or transaction associates civil consequences for another person, entail such consequences for that person from the moment delivery of the relevant message to him or his representative.

A message is also considered delivered in cases where it was received by the person to whom it was sent (the addressee), but due to circumstances depending on him, it was not delivered to him or the addressee did not familiarize himself with it.

2. The rules of paragraph 1 of this article apply unless otherwise provided by law or the terms of the transaction or follows from custom or practice established in the relationship of the parties.

Invalidity of transactions

Article 166. Voidable and void transactions

(as amended by Federal Law No. 100-FZ dated May 7, 2013)
1. A transaction is invalid on the grounds established by law, due to its recognition as such by the court (voidable transaction) or regardless of such recognition (void transaction).

2. A demand to recognize a voidable transaction as invalid may be submitted by a party to the transaction or by another person specified in the law.

A contestable transaction may be declared invalid if it violates the rights or legally protected interests of the person challenging the transaction, including if it entails unfavorable consequences for him.

In cases where, in accordance with the law, a transaction is contested in the interests of third parties, it may be declared invalid if it violates the rights or legally protected interests of such third parties.

A party whose behavior makes clear its will to maintain the validity of the transaction does not have the right to challenge the transaction on grounds that this party knew or should have known about when its will was expressed.

3. A party to the transaction, and in cases provided for by law, also another person, has the right to submit a demand for the application of the consequences of the invalidity of a void transaction.

The requirement to recognize a void transaction as invalid, regardless of the application of the consequences of its invalidity, can be satisfied if the person making such a demand has a legally protected interest in recognizing this transaction as invalid.

4. The court has the right to apply the consequences of the invalidity of a void transaction on its own initiative, if this is necessary to protect public interests, and in other cases provided for by law.

5. A statement about the invalidity of a transaction has no legal significance if the person referring to the invalidity of the transaction acts in bad faith, in particular if his behavior after the conclusion of the transaction gave grounds for other persons to rely on the validity of the transaction.

Article 167. General provisions on the consequences of invalidity of a transaction

1. An invalid transaction does not entail legal consequences, except for those related to its invalidity, and is invalid from the moment of its completion.

A person who knew or should have known about the grounds for the invalidity of a contested transaction, after the recognition of this transaction as invalid, is not considered to have acted in good faith. (paragraph introduced by Federal Law dated 05/07/2013 N 100-FZ)

2. If the transaction is invalid, each party is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including when the received is expressed in the use of property, work performed or service provided), reimburse its cost, if other consequences The invalidity of a transaction is not provided for by law. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

3. If it follows from the essence of a voidable transaction that it can only be terminated for the future, the court, declaring the transaction invalid, terminates its validity for the future. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

4. The court has the right not to apply the consequences of invalidity of a transaction (clause 2 of this article) if their application would contradict the fundamentals of legal order or morality. (Clause 4 introduced by Federal Law dated 05/07/2013 N 100-FZ)

Article 168. Invalidity of a transaction that violates the requirements of the law or other legal act

(as amended by Federal Law No. 100-FZ dated 07.05.2013)
1. Except for the cases provided for in paragraph 2 of this article or other law, a transaction that violates the requirements of a law or other legal act is voidable, unless it follows from the law that other consequences of the violation not related to the invalidity of the transaction must be applied.

2. A transaction that violates the requirements of a law or other legal act and at the same time encroaches on public interests or the rights and interests protected by law of third parties is void, unless it follows from the law that such a transaction is contestable or other consequences of the violation not related to invalidity must be applied transactions.

Article 169. Invalidity of a transaction made for a purpose contrary to the foundations of law and order and morality

(as amended by Federal Law No. 100-FZ dated May 7, 2013)
A transaction made for a purpose that is obviously contrary to the foundations of law and order or morality is void and entails the consequences established by Article 167 of this Code. In cases provided for by law, the court may recover to the income of the Russian Federation everything received under such a transaction by the parties who acted intentionally, or apply other consequences established by law.

Article 170. Invalidity of imaginary and feigned transactions

1. An imaginary transaction, that is, a transaction made only for show, without the intention of creating legal consequences corresponding to it, is void.

2. A sham transaction, that is, a transaction that was made to cover up another transaction, including a transaction on different terms, is void. To a transaction that the parties actually intended, taking into account the essence and content of the transaction, the rules relating to it are applied. (Clause 2 as amended by Federal Law dated 05/07/2013 N 100-FZ)

Article 171. Invalidity of a transaction made by a citizen declared incompetent

1. A transaction made by a citizen declared incompetent due to a mental disorder is void.

Each party to such a transaction is obliged to return to the other everything received in kind, and if it is impossible to return what was received in kind, to reimburse its cost. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

The capable party is obliged, in addition, to compensate the other party for the actual damage it has suffered if the capable party knew or should have known about the incapacity of the other party.

2. In the interests of a citizen declared incompetent due to a mental disorder, a transaction made by him may, at the request of his guardian, be recognized by the court as valid if it was made for the benefit of this citizen.

Article 172. Invalidity of a transaction made by a minor under fourteen years of age

1. A transaction made by a minor under fourteen years of age (minor) is void. The rules provided for in paragraphs two and three of paragraph 1 of Article 171 of this Code apply to such a transaction.

2. In the interests of a minor, a transaction made by him may, at the request of his parents, adoptive parents or guardian, be recognized by the court as valid if it was made for the benefit of the minor.

3. The rules of this article do not apply to small household and other transactions of minors, which they have the right to carry out independently in accordance with Article 28 of this Code.

Article 173. Invalidity of a transaction of a legal entity made in conflict with the goals of its activities

(as amended by Federal Law No. 100-FZ dated 07.05.2013)
A transaction made by a legal entity in conflict with the goals of its activities, specifically limited in its constituent documents, may be declared invalid by the court at the claim of this legal entity, its founder (participant) or another person in whose interests the restriction is established, if it is proven that the other party to the transaction knew or should have known about such a restriction.

Article 173.1. Invalidity of a transaction made without the consent of a third party, a body of a legal entity or a state body or local government body required by law

(introduced by Federal Law No. 100-FZ of May 7, 2013)
1. A transaction made without the consent of a third party, a body of a legal entity or a state body or local government body, the need to obtain which is provided for by law, is voidable, unless it follows from the law that it is void or does not entail legal consequences for the person authorized to give consent in the absence of such consent. It may be declared invalid at the request of such a person or other persons specified in the law.

The law or, in the cases provided for by it, an agreement with the person whose consent is required to complete a transaction may establish other consequences of the absence of the necessary consent to complete a transaction than its invalidity.

2. Unless otherwise established by law, a voidable transaction made without the consent of a third party, a body of a legal entity or a state body or local government body required by law, may be declared invalid if it is proven that the other party to the transaction knew or should have known about absence at the time of the transaction of the necessary consent of such person or such body.

3. A person who has given the consent required by law to carry out a contestable transaction does not have the right to challenge it on grounds that this person knew or should have known at the time of expressing consent.

Article 174. Consequences of violation by a representative or body of a legal entity of the conditions for the exercise of powers or interests of the represented or interests of the legal entity

(as amended by Federal Law No. 100-FZ dated 05/07/2013)
1. If the powers of a person to complete a transaction are limited by an agreement or regulation on a branch or representative office of a legal entity or the powers of a body of a legal entity acting on behalf of a legal entity without a power of attorney are limited by the constituent documents of the legal entity or other documents regulating its activities in comparison with how they are defined in the power of attorney, in the law or as they may be considered obvious from the situation in which the transaction is made, and in its execution such person or such body has gone beyond the limits of these restrictions, the transaction may be declared invalid by the court at the request of the person in whose interests the restrictions are established only in cases where it is proven that the other party to the transaction knew or should have known about these restrictions.

2. A transaction made by a representative or acting on behalf of a legal entity without a power of attorney by a body of a legal entity to the detriment of the interests of the represented or the interests of the legal entity may be declared invalid by the court at the claim of the represented or at the claim of the legal entity, and in cases provided for by law, at the claim, brought in their interests by another person or other body, if the other party to the transaction knew or should have known about the obvious damage to the represented or to the legal entity or there were circumstances that indicated collusion or other joint actions of the representative or body of the legal entity and the other party transactions to the detriment of the interests of the represented person or the interests of the legal entity.

Article 174.1. Consequences of a transaction in relation to property, the disposal of which is prohibited or limited

(introduced by Federal Law No. 100-FZ dated 05/07/2013)
1. A transaction made in violation of the prohibition or restriction on the disposal of property arising from the law, in particular from the legislation on insolvency (bankruptcy), is void to the extent that it provides for the disposal such property (Article 180).

2. A transaction made in violation of a ban on the disposal of the debtor’s property, imposed in a judicial or other manner established by law in favor of his creditor or other authorized person, does not interfere with the exercise of the rights of the said creditor or other authorized person, which were ensured by the ban, except in cases where the purchaser of the property did not know and should not have known about the prohibition.

Article 175. Invalidity of a transaction made by a minor aged fourteen to eighteen years

1. A transaction made by a minor aged fourteen to eighteen years without the consent of his parents, adoptive parents or guardian in cases where such consent is required in accordance with Article 26 of this Code may be declared invalid by the court at the claim of the parents, adoptive parents or guardian.

If such a transaction is declared invalid, the rules provided for in paragraphs two and three of paragraph 1 of Article 171 of this Code are applied accordingly.

2. The rules of this article do not apply to transactions of minors who have become fully capable.

Article 176. Invalidity of a transaction made by a citizen whose legal capacity has been limited by a court

1. A transaction to dispose of property made without the consent of the trustee by a citizen whose legal capacity is limited by the court (Article 30) may be declared invalid by the court at the suit of the trustee. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

If such a transaction is declared invalid, the rules provided for in paragraphs two and three of paragraph 1 of Article 171 of this Code are applied accordingly.

2. The rules of this article do not apply to transactions that a citizen limited in legal capacity has the right to carry out independently in accordance with Article 30 of this Code. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

Article 177. Invalidity of a transaction made by a citizen incapable of understanding the meaning of his actions or managing them

1. A transaction made by a citizen, although legally capable, was at the time of its completion in such a state where he was not able to understand the meaning of his actions or manage them, may be declared invalid by the court at the claim of this citizen or other persons whose rights or interests protected by law are violated as a result of its commission.

2. A transaction made by a citizen who was subsequently declared incompetent may be declared invalid by the court at the request of his guardian if it is proven that at the time of the transaction the citizen was not able to understand the meaning of his actions or manage them.

3. If a transaction is declared invalid on the basis of this article, the rules provided for in paragraphs two and three of paragraph 1 of Article 171 of this Code are applied accordingly.

Article 178. Invalidity of a transaction made under the influence of a material misconception

(as amended by Federal Law No. 100-FZ dated 07.05.2013)
1. A transaction made under the influence of a mistake may be declared invalid by the court at the claim of the party acting under the influence of the mistake, if the mistake was so significant that this party, reasonably and objectively assessing the situation, she would not have made the transaction if she had known about the actual state of affairs.

2. If the conditions provided for in paragraph 1 of this article are met, the error is assumed to be sufficiently significant, in particular if:

1) the party made an obvious reservation, typo, typo, etc.;

2) the party is mistaken regarding the subject of the transaction, in particular those of its qualities that are considered essential in circulation;

3) the party is mistaken regarding the nature of the transaction;

4) the party is mistaken regarding the person with whom he enters into a transaction or a person associated with the transaction;

5) a party is mistaken regarding a circumstance that it mentions in its expression of will or from the presence of which it is obvious to the other party when making a transaction.

3. Misconception regarding the motives of the transaction is not significant enough to invalidate the transaction.

4. A transaction cannot be declared invalid on the grounds provided for in this article if the other party agrees to maintain the validity of the transaction on the conditions that the party acting under the influence of a mistake assumed. In this case, the court, refusing to recognize the transaction as invalid, indicates these terms of the transaction in its decision.

5. The court may refuse to recognize a transaction as invalid if the error under the influence of which a party to the transaction acted was such that it could not be recognized by a person acting with ordinary prudence and taking into account the content of the transaction, accompanying circumstances and characteristics of the parties.

6. If a transaction is declared invalid as made under the influence of a mistake, the rules provided for in Article 167 of this Code are applied to it.

The party on whose claim the transaction is declared invalid is obliged to compensate the other party for the actual damage caused to it as a result, except for cases where the other party knew or should have known about the existence of a mistake, including if the mistake arose as a result of circumstances depending on it.

The party on whose claim the transaction is declared invalid has the right to demand from the other party compensation for losses caused to it if it proves that the error arose as a result of circumstances for which the other party is responsible.

Article 179. Invalidity of a transaction made under the influence of deception, violence, threat or unfavorable circumstances

(as amended by Federal Law No. 100-FZ dated May 7, 2013)
1. A transaction made under the influence of violence or threat may be declared invalid by the court at the request of the victim.

2. A transaction made under the influence of deception may be declared invalid by the court at the request of the victim.

Deliberate silence about circumstances that a person should have reported with the conscientiousness required of him under the terms of the transaction is also considered deception.

A transaction made under the influence of deception of the victim by a third party may be declared invalid at the request of the victim, provided that the other party or the person to whom the unilateral transaction was addressed knew or should have known about the deception. It is considered, in particular, that a party knew about the deception if the third party guilty of deception was its representative or employee or assisted it in completing the transaction.

3. A transaction on extremely unfavorable terms, which a person was forced to make as a result of a confluence of difficult circumstances, which the other party took advantage of (a enslaving transaction), may be declared invalid by the court at the request of the victim.

4. If a transaction is declared invalid on one of the grounds specified in paragraphs 1 - 3 of this article, the consequences of invalidity of the transaction established by Article 167 of this Code shall apply. In addition, losses caused to the victim are compensated by the other party. The risk of accidental destruction of the subject of the transaction is borne by the other party to the transaction.

Article 180. Consequences of invalidity of part of the transaction

The invalidity of a part of a transaction does not entail the invalidity of its other parts, if it can be assumed that the transaction would have been completed without the inclusion of its invalid part.

Article 181. Limitation periods for invalid transactions

(Article 181 as amended by Federal Law No. 109-FZ of July 21, 2005)(*)

1. The limitation period for claims to apply the consequences of the invalidity of a void transaction and to recognize such a transaction as invalid (clause 3 of Article 166) is three years. The limitation period for these claims begins from the day when the execution of a void transaction began, and in the event of a claim being brought by a person who is not a party to the transaction, from the day when this person learned or should have known about the beginning of its execution. In this case, the limitation period for a person who is not a party to the transaction, in any case, cannot exceed ten years from the date of commencement of execution of the transaction. (Clause 1 as amended by Federal Law dated 05/07/2013 N 100-FZ)

2. The limitation period for a claim to declare a voidable transaction invalid and to apply the consequences of its invalidity is one year. The limitation period for the said claim begins from the day the violence or threat under the influence of which the transaction was concluded ceases (clause 1 of Article 179), or from the day when the plaintiff learned or should have learned about other circumstances that are the basis for declaring the transaction invalid. ______________ (*) ​​Established by Article 181.. . ...the limitation period for a claim to apply the consequences of the invalidity of a void transaction also applies to claims for which the deadline for presentation previously established by the Civil Code of the Russian Federation has not expired before the day this Federal Law comes into force. (Article 2 of the Federal Law of July 21, 2005 N 109-FZ)

Another comment on Art. 158 Civil Code of the Russian Federation

1. To complete a transaction, the will of a person must be expressed externally, i.e. brought to the attention of others. The method of expressing the will is called the form of the transaction. The will can be expressed orally or in writing, and also manifested by performing implied actions (see paragraph 2 below), and the form of the transaction is accordingly divided into written (simple and notarial) and oral.

2. In an oral transaction, the will of the person is expressed verbally. A transaction that can be concluded orally is considered completed in the case when his will to complete the transaction is clear from the behavior of the person - this is the completion of the transaction through implicit actions (for example, withdrawing cash from an ATM). In cases provided for by law, the commission of implied actions can be considered under certain conditions and as consent to amend an agreement concluded in writing (clause 3 of Article 438 of the Civil Code of the Russian Federation).

3. Silence is recognized as an expression of the will to complete a transaction in cases provided for by law or agreement of the parties, for example, non-acceptance of an inheritance (Article 1161 of the Civil Code of the Russian Federation), continued use by the tenant of the leased property in the absence of objections from the lessor (clause 2 of Article 621 of the Civil Code of the Russian Federation) .

In some cases, the law expands the list of grounds for qualifying silence as an expression of will. So, paragraph 2 of Art. 438 of the Civil Code allows for the possibility of qualifying silence as acceptance not only on the basis of the law, but also due to business customs or previous business relations of the parties, and such a possibility is considered as an exception to the general rule. Canceling the decision in the case where the facts of the defendant’s acceptance of goods at a changed price and the continuation of payment for it were recognized by the court of first instance as consent to the price change, the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 3973/01 of January 25, 2002 indicated that since the price change after the conclusion of the contract is allowed in cases and on the conditions provided for by the agreement (clause 2 of Article 424 of the Civil Code of the Russian Federation), and the disputed agreement established the possibility of changing the price only by agreement of the parties, then silence by virtue of clause 2 of Art. 438 of the Civil Code did not express the defendant’s consent to the price change (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2002. No. 5).

Article 158 of the Civil Code of the Russian Federation. Transaction form (current version)

1. The form of the transaction, which is discussed in the commented article, is understood as the way of expressing the will of the parties to the transaction. The will can be expressed orally or in writing, and also manifested by performing implied actions, and the form of the transaction, accordingly, is divided into written (simple and notarial) and oral.

With a simple written form of a transaction, it is concluded by drawing up a document that sets out its contents in writing. This document must indicate the parties to the transaction; They (or their authorized persons) must sign the document.

The oral form of a transaction is, first of all, the exchange of certain spoken words, from which the desire to complete the transaction is clear.

It is possible both in direct communication and in a conversation on the phone or in another way of exchanging information without fixing it on any tangible medium.

An oral form of a transaction is allowed only when it is expressly provided for by law.

2. Transactions for which the law allows an oral form of execution can be concluded through so-called implied actions, i.e. behavior of a person, from which his will to complete a transaction is clear. The parties resort to conclusive actions only when there is no need to agree on any conditions and the law, and the essence of the transaction allows the use of this method of execution. An example of conclusive actions is the purchase of goods through vending machines.

Unfortunately, the legislator did not clarify the question of whether a transaction made through implied actions is an independent type of transaction form or whether it is a type of oral transaction form. As you know, there is no single point of view on this matter. In paragraph 2 of Art. 158 of the Civil Code reproduces the previously existing provision that a transaction that can be concluded orally is considered completed in the case when his will to complete the transaction is clear from the behavior of the person.

In addition, the issues that arose in connection with the development of technological progress remained unattended. Thus, the authors ignored issues related to such unnamed forms of transactions as expression of will using SMS messages, transactions made on the Internet without the use of an electronic digital signature (when it is enough to just click the computer mouse to express the will to complete a transaction ).

Finally, nothing is said about the expression of will through sign language used in communication by people who are hard of hearing or have limited speech abilities. In other words, nothing is said about whether it is possible to talk about a special form of oral expression of will.

3. Silence as a way of expressing will means, as a general rule, a person’s refusal to complete a transaction. However, in cases directly provided for by law or agreement of the parties, silence is recognized as an expression of the will of a person to complete a transaction. An example is clause 2 of Art. 621 Civil Code, Art. 999 Civil Code, clause 2, art. 1153 Civil Code.

Comment source:

“CIVIL CODE OF THE RUSSIAN FEDERATION. PART ONE. ARTICLE-BY-ARTICLE COMMENT"

S.P. Grishaev, T.V. Bogacheva, Yu.P. Sweet, 2019