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RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of July 11, 2011 No. 54

About some questions of the dispute resolution arising from agreements concerning the real estate which will be created or acquired in the future

Due to the questions arising at Arbitration Courts (further - courts) by consideration of disputes from agreements concerning the real estate which will be created or acquired in the future, being guided by article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation", the Plenum of the Supreme Arbitration Court of the Russian Federation decides to make the following explanations:

1. According to Item 2 of Article 455 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation, the Code) the subject of the agreement of purchase and sale can be as goods, available at the seller at the time of the conclusion of the agreement, and the goods which will be created or acquired by the seller in the future if other is not established by the law or do not follow from nature of goods (the purchase and sale agreement of future thing).

Owing to Item 5 of article 454 of the Code the provisions provided by paragraph 1 of Chapter 30 of the Civil Code of the Russian Federation are applied to separate agreement types of purchase and sale if other is not established by rules of the Code about these agreement types.

Because paragraph 7 of Chapter 30 of the Civil Code of the Russian Federation does not contain the provisions prohibiting the conclusion of purchase and sale agreements concerning real estate, the property right of the seller to which for date of the conclusion of the agreement is not registered in the Unified State Register of Rights on real estate and transactions with it (further - EGRP), but under the terms of this agreement will arise at the seller in the future (the purchase and sale agreement of future immovable thing), courts should recognize that absence at the seller at the time of the conclusion of the sales agreement of the real estate of the property right to property - the subject of the agreement - in itself is not the basis for recognition of such agreement invalid.

At the same time courts need to mean that for state registration of transition of the property right to real estate to the buyer (articles 131 and 551 Civil Codes of the Russian Federation) the seller shall have the property right to it.

2. According to provisions of article 554 Civil Code of the Russian Federation for individualization of the subject of the agreement of purchase and sale of real estate there is enough specifying in the agreement of cadastral number of real estate object (in case of its availability).

If the parties sign the purchase and sale agreement of future immovable thing, then individualization of the subject of the agreement can be performed by specifying of other data allowing to establish the real estate which is subject to transfer to the buyer under the agreement (for example, the location of the built real estate, the approximate area of future building or room, other characteristics, properties of the real estate, certain, in particular, according to the project documentation).

Courts need to consider that such agreements shall provide the price of the sold property which can be established for unit of its area or otherwise (Item 3 of article 555 Civil Code of the Russian Federation).

If in the text of the purchase and sale agreement of immovable thing there are not enough data for individualization of the sold real estate object, however they are available, for example, in the delivery-acceptance certificate which is drawn up by the parties in pursuance of the agreement signed by them, such agreement cannot be recognized as unconcluded. Due to the stated refusal of body for registration of the rights to real estate and transactions with it in state registration of transition of the property right to the transferred property to the buyer with reference to the fact that the purchase and sale agreement cannot be considered as the prisoner does not correspond to the law and can be recognized as illegal court according to the procedure, provided by part 2 of Article 201 of the Arbitral Procedure Code of the Russian Federation.

3. In case of origin between agreement parties of purchase and sale of future immovable thing of dispute over occasion of what immovable thing is subject to transfer to the buyer to purchase and sale agreement performance, court based on article 431 Civil Code of the Russian Federation establishes the valid will of the parties, proceeding from provisions signed by agreement parties, other proofs on case, and also in view of the practice which developed in the mutual relations of the parties, business customs, the subsequent behavior of the parties.

If the court on the basis of the produced evidence comes to conclusion that the parties did not reach the agreement on occasion of what property is subject to transfer into the ownership of the buyer, such agreement cannot be considered as the prisoner.

At the same time courts should mean that in cases when the buyer signed the purchase and sale agreement of future immovable thing, being under the influence of delusion concerning the fact that the data containing in it are enough for individualization of the subject of the agreement, he can demand from the seller of compensation of the actual damage caused owing to recognition of the agreement unconcluded if proves that the delusion arose because of the seller, in relation to the paragraph to the second Item 2 of article 178 Civil Code of the Russian Federation.

4. By consideration of the disputes following from the agreements connected with investing activities in the field of financing of construction or reconstruction of real estate objects, courts should establish the legal nature of the relevant agreements and to resolve dispute over rules of Chapters 30 ("Purchase and sale"), 37 ("In a row"), 55 ("Particular partnership") of the Code, etc.

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