In the lexical meaning, an identity can be drawn between the words “barter” and “barter” (barter - from the English barter, which means to change, exchange). From a legal point of view, these concepts are in approximately the same relationship as the categories “supply” and “contracting”. The term "barter" has traditionally been used for many years to refer to foreign trade transactions. During the crisis of monetary circulation between commercial organizations of the USSR (as later in the Russian Federation), relations of natural exchange, which were also called barter, became widespread. However, it is more correct to apply the term “barter” to foreign trade transactions. The Civil Code does not contain a definition of barter. Traditionally, legal regulation of foreign trade barter transactions is carried out at the level of by-laws. There is a distinction between the concept of barter in a narrow and broad sense.
In a narrow sense, barter refers to the exchange of a certain amount of one good for another in the form of an exchange in kind.
In a broad sense, foreign trade barter refers to transactions made during foreign trade activities that involve the exchange of goods, works, services, and results of intellectual activity of equivalent value.
In the first case, we mean the exchange of things that have a commodity form, and in the second case, the exchange is provided not only of things, but also of works, services, and results of intellectual activity that have a commodity form. In both cases, barter transactions do not include transactions that involve the use of cash or other means of payment in their implementation, i.e. mechanism of monetary and financial settlements.
A foreign trade barter agreement is bilateral, paid, consensual, and is concluded in simple written form.
In comparison with the barter agreement, the following features of foreign trade barter can be distinguished. Firstly, as follows from the name itself, barter is a foreign economic transaction, where one of the parties to the agreement is a business entity of the Russian Federation, and the other party is a business entity of a foreign state.
Secondly, for foreign trade barter only exchanges of equivalent value are provided (even without the partial use of means of payment to compensate for possible price differences). If the terms of the agreement are changed towards the possibility of making payments using means of payment, this agreement ceases to be considered a barter transaction, and strict administrative control is provided for the circulation of means of payment.
Thirdly, when making barter transactions, not only things in the form of goods, but also works, services and results of intellectual activity can be used as an object. In the system of traditionally formalized foreign trade transactions, barter transactions are subject to special control by financial and customs authorities * (335). This procedure is due to the fact that foreign trade barter is objectively a variant of concluding a sham transaction. In this regard, the main controllable parameters of a barter transaction are: reality, quantity and quality of execution (especially in the case of exchange of works, services and results of intellectual activity) and compliance with the condition of “equivalence”.
The essential condition is the subject of the contract, i.e. nomenclature, quantity and quality, if we are talking about things in the form of goods, or a list of works, services and results of intellectual activity (with a definition in the text of the contract of a list of documents confirming the facts of the performance of work, the provision of services and the granting of rights to the results of intellectual activity).
Agreeing on the subject of a barter transaction is difficult in comparison with other types of obligations, since ordinary means of payment here can only be used as a conditional value. Each of the counterparties offers goods as compensation, the value of which must comply with the principle of equivalence.
In addition, as terms of the contract, it is necessary to highlight the term and conditions of export/import in order to exclude the option of hidden lending, as well as the procedure for satisfying claims in the event of non-fulfillment or improper fulfillment by the parties of the terms of the contract.
A barter transaction (barter), being one of the forms of countertrade (barter exchange operation), is an agreement between participants in commercial transactions having different state (national) affiliations for the exchange of goods, works, services or results of intellectual activity of equal value, formalized in the form one document (agreement or contract).
The above definition of a barter transaction allows us to highlight the following characteristics:
1) a barter transaction is one of the forms of countertrade - a commodity exchange operation. Countertrade refers to foreign trade transactions in which firm obligations of exporters and importers to carry out a full or partially balanced exchange of goods are recorded in single documents (agreements or contracts).
Countertrade is an umbrella term that covers different types of two export transactions: the first originates from the exporting country, the second from the importing country.
The commercial advantage of countertrade is that it expands the practice of counterpurchases by exporters of goods that cannot be used by them in their own production, but are intended in advance for subsequent sale on the foreign or domestic market.
It should be noted that countertrade transactions, in contrast to barter, have a number of distinctive features. First, other forms of countertrade involve the use of money as a means of determining the prices of goods exchanged, as a means of financing the parties during the transaction, and to pay for surpluses in the exchange of exports and imports. Secondly, forms of countertrade other than barter are usually based on an element of necessity, i.e. they are forced to resort to national legislation, administrative regulation, currency restrictions, etc.;
2) a barter transaction is a contract, i.e. an agreement between two or more persons to exchange goods, works, services or results of intellectual activity of equal value. From the point of view of legal characteristics, a barter transaction is an agreement: bilateral (multilateral), compensated, consensual, formal.
The implementation of barter legal relations is carried out in the following sequence: firstly, a contract is concluded with a foreign supplier organization for the exchange of goods; secondly, this organization supplies the goods; thirdly, as payment for the imported goods, the partner ships the counter goods specified in the contract to the foreign company. At the same time, each of the parties participating in the barter transaction independently enters into additional contracts:
- - with a transport organization for international transportation of goods;
- - with the insurance company regarding its insurance;
- - with a bank or other organization regarding the provision of guarantees for a transaction;
- 3) the subject of barter is not only things in the form of goods, but also works, services and results of intellectual activity. If we turn to the exchange agreement, then in accordance with Art. 567 of the Civil Code of the Russian Federation, the subject of this agreement can only be things that each party to the agreement undertakes to transfer to the other party;
- 4) being a foreign trade transaction, in barter one of the parties to the agreement is a business entity of the Russian Federation, and the other is a business entity of a foreign state, i.e. participation in a barter transaction of persons of different nationality (state) affiliation;
- 5) a barter transaction is made in simple written form by concluding an agreement. In accordance with the Decree on state regulation of foreign trade barter transactions, this agreement must meet the following requirements:
- - firstly, the contract must have a date and number;
- - secondly, the agreement is drawn up in the form of one document, with the exception of barter transactions concluded to fulfill international agreements;
- - thirdly, the contract must indicate:
- · nomenclature, quantity, quality, price of goods for each product item, terms and conditions of export, import of goods;
- · list of works, services, results of intellectual activity, their cost, deadline for completing the work, time of provision of services and rights to results of intellectual activity;
- · a list of documents submitted to a Russian person to confirm the completion of work, provision of services and rights to the results of intellectual activity;
- · the procedure for satisfying claims in the event of non-fulfillment or improper fulfillment by the parties of the terms of the agreement.
As for the exchange agreement, the same requirements apply to its form as to purchase and sale agreements. If an exchange agreement is concluded between individuals and its price does not exceed 10 times the minimum wage, it is not necessary to formalize it in writing. But it should be remembered that there are exceptions for some types of contracts. For example, if state registration of the right to a received product (thing) is required, the transaction must be necessarily concluded in writing;
6) barter agreement, as noted by L.P. Anufriev, gives rise to a relationship that lasts for both parties, during which the fulfillment of their obligations extends over time.
Balanced barter is a non-currency operation, i.e. counter deliveries of equal value.
Unbalanced barter is a transaction where supplies differ, namely, the final settlement is carried out in the form of clearing, i.e. offsetting mutual claims with securities and currency. Moreover, only the difference in the cost of the goods is paid in currency.
Direct and indirect barter.
- a) direct barter - bilateral;
- b) indirect barter - multilateral.
Direct barter is carried out within the framework of the “goods for goods” formula; in this case, the transaction is bilateral and ends with each counterparty acquiring the goods he needs [11].
In multilateral barter, the first transaction involves subsequent transactions involving other economic entities. They continue until each of these subjects receives the goods they need, which will ultimately mean the end of the multilateral barter exchange.
True barter is barter where there is a simple exchange of goods without regard to their monetary value.
Value-based barter is barter in which goods are exchanged based on their monetary value.
The main difference between these types of barter is that barter, both with and without valuation, represents a single transaction in which the obligations of the parties are interconnected and dependent on each other, while in counterpurchase agreements there are always two contracts<20>. There are two problems with valuation barter agreements. The first of them is the disposal of goods received by the exporter from a foreign buyer. The second is the need to reach agreements on the settlement of the balance of payments that is formed in favor of one of the parties to the barter transaction.
With pure barter, the movement of counter flows of goods occurs, as a rule, simultaneously, and their quantity is not affected by changes in price proportions on the world market. Pure barter in international trade is extremely rare due to its applicability only for a limited set of homogeneous goods, mainly of raw material origin, and with virtually no freedom of maneuver.
Note that the above classification of barter is not fundamental from the point of view of the legal significance of the corresponding types of barter; it has more scientific and educational significance than practical significance.
Foreign trade barter transactions are a type of barter transaction. That is, it is understood that during the transaction there is an exchange of one product for another of equal value. The parties to the transaction are residents of different countries. The exporter delivers goods to the importer, but payment is made not in money, but by compensation for the counter-delivery of goods.Figure 1. “Scheme for implementing a foreign trade barter transaction”
Foreign trade barter relations carried out according to the following scheme:
conclusion of a contract by an enterprise with a foreign supplier; the supplier ships the goods on barter terms; The buyer, as payment for the imported goods, ships the counter goods specified in the contract to the supplier. Each party to the transaction independently enters into additional contracts:
Requirements for a foreign trade barter transaction
A foreign trade barter transaction is carried out in simple written form by concluding a bilateral barter agreement. The contract must comply the following requirements:must have date and number; must contain the following details: quantity, quality, assortment, complexity, price of goods (list of works, services, results of intellectual activity, their cost and deadline for completing the work); terms and conditions for export/import of goods; the procedure for satisfying claims in the event of non-fulfillment or improper fulfillment by the parties of the terms of the contract.
Passport of foreign trade barter transaction
Decor barter transaction passports falls on the Russian company. Such a passport is needed to process goods when crossing the border of the Russian Federation; it is presented to the Russian customs authorities. For each concluded agreement, one passport is issued. To do this, the Russian company submits an application to the branch of the Ministry of Economic Development in the region where it is registered. Attached to the application full set of documents:product passport drawn up in the prescribed form (2 copies); original exchange agreement; a copy of the document on state registration of the legal entity; copies of constituent documents; a copy of a document confirming the registration of a legal entity by state statistics bodies; translation of the contract certified by a Russian person in the absence of the original contract in Russian.
Tax accounting for foreign trade barter transactions
Foreign trade barter transactions imply that a Russian company submits documents to the tax authorities confirming the import of goods into the territory of the Russian Federation. It must be remembered that foreign trade barter transactions, in which goods are not imported into the territory of the Russian Federation, are not subject to VAT, but there will also be no tax deduction rights for them. (Clause 2, Clause 1, Article 165 of the Tax Code of the Russian Federation) “To confirm the zero VAT rate when making foreign trade barter transactions in which the received goods are not imported into Russia, it is necessary to submit the documents provided for in the contract confirming the receipt of the goods abroad and their receipt” .Business loan application
Your application will be sent to several banks in your city that provide small business loans. You can select one or several banks at once.
In current legislation, and especially in business, the term “barter” is often used in cases when we are talking about the exchange of any property goods. Barter is the direct exchange of one product for another Nesterov S.S. The relationship between exchange and barter in commodity exchange transactions // Jurisprudence. - 2008. - No. 11. - P. 213.. For example, a farmer exchanges 500 kg of grain for one cow belonging to a cattle breeder. However, barter transactions can be carried out smoothly only with a limited set of goods offered for exchange. The number of participants in a barter exchange is also limited. When a large number of economic entities are involved in trade, barter runs into serious difficulties. For example, you want to trade your wheat for a copper jar, but the owner of the jar does not want your grain. It will take many trades in between before you finally own the jug. This difficulty, noted K. Menger, would seem insurmountable if “in the very nature of things there did not exist a means that by itself and without any ... agreement or state coercion leads to a solution to this difficulty” Menger K. Foundations of Political Economy. - In the book: The Austrian school in political economy: K. Menger, E. Böhm-Bawerk, F. Wieser: Trans. with him. / Preface, commentary, comp. V.S. Avtonomova. ? M.: Economics, 1992. - P. 218. . The fact is that as exchange develops in different regions, a product with the greatest ability to sell is singled out (K. Menger’s term). In modern language, we are talking about a product that has the greatest liquidity.
Already at the early stage of the development of trade in different countries and regions, people found a product that was more marketable than their own, and which could be exchanged for the product they needed. Any goods were used as a means of exchange - livestock, grain, salt, copper, etc., but they all had to satisfy one requirement: to receive general recognition from both buyers and sellers as a means of exchange. In Russia, until the end of the reign of Dmitry Donskoy, the most liquid means of exchange were silver in bullion ("hryvnia"), foreign coins (until the half of the 8th century - Roman denarii, in the 8th - 10th centuries - eastern dirhams, mainly Arabic, with XI - Western European coins) and fur valuables ("coons", "cut", "muzzles", etc.). Gradually, precious metals - gold and silver - became an absolutely liquid means of exchange. Kashtanov N. From the history of small business in Russia // Man and Labor. - 2007. - No. 9. - P. 71..
In the lexical meaning, an identity can be drawn between the words “barter” and “barter” (barter - from English to change, exchange). Does this mean that barter (barter transaction) is synonymous with barter in the sense of Chapter 31 of the Civil Code? Analysis of legislation shows that these concepts are not always identical. So, in paragraph 2 of Art. 154 of Part Two of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code) mentions the sale of goods (work, services) through commodity exchange (barter) transactions. Commodity exchange (barter) transactions are also discussed in paragraph 2 of Art. 40 parts of the first NK. It is not difficult to see that in the Tax Code, barter is understood as a transaction for the exchange of goods, which outwardly coincides with barter; however, in the Tax Code, goods are understood not only as property, but also as works and services, which in themselves, unlike the right to demand their execution, do not may be the subject of an exchange agreement in the sense of Art. 567 Civil Code.
From a legal point of view, these concepts (“barter” and “barter”) are in approximately the same relationship as the categories “supply” and “contracting”. The term "barter" has traditionally been used for many years to refer to foreign trade transactions. During the crisis of monetary circulation between commercial organizations of the USSR (as later in the Russian Federation), relations of natural exchange, which were also called barter, became widespread. However, it is more correct to apply the term “barter” to foreign trade transactions.
The Civil Code does not contain a definition of barter. Traditionally, legal regulation of foreign trade barter transactions is carried out at the level of by-laws. There is a distinction between the concept of barter in a narrow and broad sense. In a narrow sense, barter refers to the exchange of a certain amount of one good for another in the form of an exchange in kind. In a broad sense, foreign trade barter refers to transactions made during foreign trade activities that involve the exchange of goods, works, services, and results of intellectual activity of equivalent value. In the first case, we mean the exchange of things that have a commodity form, and in the second case, the exchange is provided not only of things, but also of works, services, and results of intellectual activity that have a commodity form. In both cases, barter transactions do not include transactions that involve the use of cash or other means of payment in their implementation, i.e. mechanism of monetary and financial settlements.
A foreign trade barter agreement is bilateral, paid, consensual, and is concluded in simple written form.
According to Art. 43, 44 of the Federal Law of December 8, 2003 No. 164-FZ (as amended on February 2, 2006) “On the fundamentals of state regulation of foreign trade activities” Rossiyskaya Gazeta. - 12/18/2003; 02/08/2006. prohibitions and restrictions on foreign trade barter transactions, the procedure for monitoring such transactions are established by the Government of the Russian Federation.
It is also worth mentioning the Decree of the President of the Russian Federation of August 18, 1996 No. 1209 “On state regulation of foreign trade barter transactions” Rossiyskaya Gazeta. - 08/28/1996. (hereinafter referred to as the Decree). According to paragraph 1 of the Decree, for the purposes of this normative act (which, as far as can be judged from the content of the Decree, consisted of ensuring currency and export control, although they were not formulated as such), foreign trade barter transactions are understood as transactions made in the implementation of foreign trade activities, providing for the exchange of equivalent by value of goods, works, services, results of intellectual activity. It is specifically noted that barter transactions do not include transactions involving the use of cash or other means of payment in their implementation.
Clause 2 of the Decree contains an order to carry out barter transactions in simple written form by concluding a bilateral exchange agreement, which must, in particular, be drawn up in the form of a single document (with the exception of barter transactions concluded to fulfill international agreements), contain an indication of the nomenclature, quantity, quality, price of goods for each product item, terms and conditions of export and import of goods; list of works, services, results of intellectual activity, their cost, deadlines for completing work, the moment of provision of work, services and rights, etc.
Thus, from paragraph 2 of the Decree it clearly follows that a barter transaction must be an exchange agreement. Meanwhile, the Decree does not contain any special definition of the barter agreement. Consequently, the barter agreement mentioned in the Decree must be understood in accordance with the norms of the Civil Code, if only because otherwise the Decree would be completely unenforceable due to the vagueness of the concept of a barter transaction.
Of the items of the barter transaction listed in paragraph 1 of the Decree, the subject of the exchange agreement in the sense of Art. 567 of the Civil Code can only be goods, as well as results of intellectual activity, but not any, but only those representing intellectual property (that is, according to Article 128 of the Civil Code, exclusive rights to results of intellectual activity, for example, the rights of the holder of a patent for an invention). Meanwhile, the work and services themselves, as noted above, cannot be the subject of an exchange agreement.
According to paragraph 3 of Art. 3 of the Civil Code, civil legal relations can be regulated by decrees of the President of the Russian Federation, which should not contradict the Civil Code. It follows that the mentioned Decree is not subject to application insofar as it, contrary to the rules of Art. 567 of the Civil Code, provides for the inclusion of works and services in the subject of the exchange agreement (that is, a barter transaction). Meanwhile, excluding mention of the barter agreement from clause 2 of the Decree would eliminate the noted contradiction between the Decree and Art. 567 Civil Code. In this case, certain norms of Chapter 31 of the Civil Code could be applied to relations arising in connection with the conclusion of a foreign trade barter transaction, but not directly, but by way of analogy with the law (clause 1 of Article 6 of the Civil Code).
In the lexical meaning, an identity can be drawn between the words “barter” and “barter” (barter - from the English barter, which means to change, exchange). From a legal point of view, these concepts are in approximately the same relationship as the categories “supply” and “contracting”. The term "barter" has traditionally been used for many years to refer to foreign trade transactions. During the crisis of monetary circulation between commercial organizations of the USSR (as later in the Russian Federation), relations of natural exchange, which were also called barter, became widespread. However, it is more correct to apply the term “barter” to foreign trade transactions. GK does not contain a definition of barter. Traditionally, legal regulation of foreign trade barter transactions is carried out at the level of by-laws. There is a distinction between the concept of barter in a narrow and broad sense.
In a narrow sense, barter refers to the exchange of a certain amount of one good for another in the form of an exchange in kind.
In a broad sense, foreign trade barter refers to transactions made during foreign trade activities that involve the exchange of goods, works, services, and results of intellectual activity of equivalent value.
In the first case, we mean the exchange of things that have a commodity form, and in the second case, the exchange is provided not only of things, but also of works, services, and results of intellectual activity that have a commodity form. In both cases, barter transactions do not include transactions that involve the use of cash or other means of payment in their implementation, i.e. mechanism of monetary and financial settlements.
A foreign trade barter agreement is bilateral, paid, consensual, and is concluded in simple written form.
In comparison with the barter agreement, the following features of foreign trade barter can be distinguished. Firstly, as follows from the name itself, barter is a foreign economic transaction, where one of the parties to the agreement is a business entity of the Russian Federation, and the other party is a business entity of a foreign state.
Secondly, for foreign trade barter only exchanges of equivalent value are provided (even without the partial use of means of payment to compensate for possible price differences). If the terms of the agreement are changed towards the possibility of making payments using means of payment, this agreement ceases to be considered a barter transaction, and strict administrative control is provided for the circulation of means of payment.
Thirdly, when making barter transactions, not only things in the form of goods, but also works, services and results of intellectual activity can be used as an object. In the system of traditionally formalized foreign trade transactions, barter transactions are subject to special control by financial and customs authorities *(335) . This procedure is due to the fact that foreign trade barter is objectively a variant of concluding a sham transaction. In this regard, the main controllable parameters of a barter transaction are: reality, quantity and quality of execution (especially in the case of exchange of works, services and results of intellectual activity) and compliance with the condition of “equivalence”.
The essential condition is the subject of the contract, i.e. nomenclature, quantity and quality, if we are talking about things in the form of goods, or a list of works, services and results of intellectual activity (with a definition in the text of the contract of a list of documents confirming the facts of the performance of work, the provision of services and the granting of rights to the results of intellectual activity).
Agreeing on the subject of a barter transaction is difficult in comparison with other types of obligations, since ordinary means of payment here can only be used as a conditional value. Each of the counterparties offers goods as compensation, the value of which must comply with the principle of equivalence.
In addition, as terms of the contract, it is necessary to highlight the term and conditions of export/import in order to exclude the option of hidden lending, as well as the procedure for satisfying claims in the event of non-fulfillment or improper fulfillment by the parties of the terms of the contract.
_ 2. Donation agreement
1. The concept of a gift agreement
3. Donation
