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Publication date: 13.03.2024
I am studying in the third year of the State University of Economics and Technology.I specialize in contractual, economic and corporate law, in particular, I provide consultations and write articles.
Modern conditions for the development of the market economy are based on new, progressive means of commodity exchange, through the conclusion of contracts of purchase and sale or other transactions. At the same time, such a concept as barter, i.e. direct non-cash exchange of goods, is still present in civil, economic legal relations. Such an exchange is established in the form of a contract of exchange, which provides for the obligation of each of its parties to transfer ownership of a certain product to the other party in exchange for another. Under such conditions, the party in the mine contract will act simultaneously as both a seller and a buyer of a certain product. According to Art. 293 of the GCU in the field of management, the goods under the mining contract can be transferred to ownership, full economic ownership, or operational management.
Analysis of the features of the contractual regulation of barter operations:
First, it is worth deciding on the main features of a mine agreement, namely: consensuality (it will be considered concluded from the moment of reaching agreement on all essential conditions), bilaterality, as well as causality. As for the subject of the contract, it can be a product, that is, movable or immovable things, securities, currency values, as well as services or works. It should be taken into account that the object of barter cannot be property belonging to the fund of state or communal property, if the party to the contract is a state or communal enterprise. The essential terms of the mining contract are: subject, price and validity period. In addition to the essential conditions, the parties can also define others that, in their opinion, will effectively regulate the barter operation. A contract of exchange concluded between legal entities, between individuals and legal entities is subject to mandatory written form. If the subject is: a plot of land, a real estate object, a complete property complex, then in addition to observing the written form, the contract will also be subject to notarization and state registration. Since the contract is bilateral, a certain amount of rights and obligations arises for both parties. The key right to which a party is entitled when concluding a mining contract is the right to demand the transfer of goods. As for the obligations, the following should be highlighted among them: transfer the goods, ensure its proper quality, warn about defects, if any, and also keep the goods in case the buyer's ownership is transferred before its transfer. Under certain circumstances, an additional payment for the product is also permissible, in particular, when the product of greater value, according to the contract, is subject to exchange for a product with a lower value. In general, it is important to consider the requirements of Art. 203 of the CCU in order for the concluded contract to remain valid.
Barter in foreign economic activity:
Barter operations can be carried out not only between parties located within the borders of Ukraine, but also between those who are foreign business entities. An important role is played by the assessment of the goods to be exchanged because it will ensure the equivalence of the exchange, customs control, determination of insurance amounts, etc. In general, the barter contract, which will be used for foreign economic activity, indicates the total value of the goods that will be imported and exported (expressed in foreign currency). It is important to take into account the terms for carrying out the barter operation, because the goods to be imported must be imported into the territory of Ukraine no later than 180 days from the day of customs clearance of the goods that are actually exported. If goods or services are subject to export, then from the day of signing the document certifying the performance of works or provision of services. If the party to the contract violates the above-mentioned requirements and others established by law, this will entail the collection of a penalty (0.3 percent of the value of the unreceived goods that are subject to import) for each day of delay. In the event of force majeure, the terms are suspended and the penalty is not subject to collection. It is also extremely important that in the case of export or import of goods and services, the subject must notify the customs authorities about the fact of export within 5 days after signing the document certifying the fact of service provision or performance of work (if goods subject to import, export) or tax authorities (if goods or services are subject to import, export).
Legal assistance in concluding mine contracts:
Since barter transactions have some legal subtleties, and especially those related to foreign economic activity, the services of a lawyer are absolutely necessary. The lawyer will draft a contract, conduct a legal analysis of the situation and advise clients based on this. A lawyer's consultation may also be necessary in case of failure of one of the parties to fulfill its obligations under the contract. Therefore, verification of documents by a lawyer is an effective tool that will help increase the effectiveness of the barter operation.
