Art. 689 of the Civil Code of the Russian Federation is devoted to the gratuitous use of property. This article of the code describes the essence of the agreement and the procedure for applying the rental rules to these legal relations. Consider the relationship of these and other provisions of the Civil Code, the rights and obligations of the parties to the agreement.
Normative regulation
CC - the main document containing the rules on the gratuitous use of property. All other normative acts are subordinate in nature and are based on the provisions of the civil code.
The rules on the contract are placed in Art. 689-701 of the Civil Code of the Russian Federation and are allocated in a separate chapter.
The law expressly states the application of the provisions on the rental of property. The list includes rules about the facility, the period, its use, the pre-emptive right to conclude a new contract and the improvements made by the user.
Art. 689 Civil Code in the original wording is valid from 01.03.1996. At the moment it is in force in the 2014 edition. The signing date was October 22, 2014, within 7 days after this the law was published, 10 days after publication it became effective - from November 9, 2014.
The changes were expressed in supplementing the article with a clause on the application of the norms of Art. 609 Civil Code for the free transfer to the use of cultural heritage objects.
Discussion of norms on the free use of property is periodically discussed in judicial practice, more often due to tax disputes.
Discussion of the contract of gratuitous use and Art. 689 of the Civil Code of the Russian Federation periodically arises in judicial practice, more often due to tax disputes.
Definition of the subject of the agreement
Art. 689 of the Civil Code of the Russian Federation provides for the transfer of property for temporary use. Payment in cash or otherwise excluded. The thing is transferred for the agreed period.
The parties are referred to as the borrower and the lender. The concept of a loan in business practice applies to money, which, however, is not wrong.
Agreement form
Art. 689 of the Civil Code does not say anything about its form. If you analyze other provisions of the code, the following should be taken into account:
- if the party to the transaction is an organization, a written form is used;
- if the participants are only citizens, the oral form is allowed, provided that the transaction price does not exceed 10 thousand rubles.
Regarding registration of rights, there are such opinions:
- registration of rights to land is mandatory if the term of the agreement is at least 12 months;
- registration of rights to a dwelling is optional;
- registration is required in the case of cultural heritage sites.
In the first case, refer to the LC, in the second to the absence of relevant provisions in Art. 36 CC and the law on registration of rights.
To certify the agreement in other cases, the parties decide at their discretion.
Parties to the agreement
Citizens and foreigners have the right to freely transfer their property for free use.
A legal entity is entitled to do this if the transfer does not contradict the organization’s charter documents.
The authorities responsible for state or municipal property are entitled to agree to its free use only in cases specified by law.
Legislation or statutory documents may provide, in addition to concluding a contract, other procedures. For example, the publication of the order of the authorized body, the board of shareholders or the owner of the enterprise.
What is transmitted
It is forbidden to transfer objects that are in restricted access. The relevant prohibitions are established by law.
Additional requirements may apply to the new owner. For example, it is allowed to transfer a car to a person who has the right to drive. The conclusion follows from Part 2 of Art. 689 of the Civil Code of the Russian Federation.
Otherwise, no prohibitions have been established. Land, transport, real estate serve as full-fledged objects.
Terms of an agreement
Based on Part 1 of Art. 689 of the Civil Code, the essential condition is only the subject of the agreement. It should be described taking into account legal norms. Land plots are mentioned with cadastral number, state registration number, etc.
Cars taking into account technical and license plate data (in particular, make, model, engine number).
Information should provide maximum identification of the subject.
The person providing the property guarantees its suitability for use for the agreed purposes, freedom from bail or arrest. The new owner has the right to know about the rights of third parties.
Rights and obligations
Let's start with the owner:
- timely transfer of property in a condition suitable for use;
- the right to maintain property in good condition or to recover damages if it is damaged;
- the right to unhindered access to the facility.
Now discuss the responsibilities and rights of the recipient:
- timely take the thing;
- ensure its safety, maintenance and overhaul (the degree of participation is regulated at the discretion of the parties).
Both the current and the overhaul fall on the shoulders of the recipient, unless otherwise provided by the text of the agreement.
Object transfer
It is fixed in the act. It serves as confirmation of the transfer of things, in addition, protects the parties in the event of claims. The act is drawn up in free form and signed by the parties and is an annex to the contract.
The document describes the condition of the thing, the shortcomings, if any. If they are not, a corresponding mark is made.
In the comments to Art. 689 of the Civil Code emphasizes the significance of the act. It is on him that the courts rely, making a decision on liability for existing shortcomings in the transferred property.
Contract term
How is the contract term regulated? Art. 689 of the Civil Code does not directly say anything about this. The legislator resolved this issue by referring to the rental rules.
The parties are entitled to conclude an agreement for a certain time or not to stipulate it at all. If the law provides for a limitation of rental periods for certain types of property, they are also valid if they are transferred free of charge.
Participants have the right to cancel the agreement at any time by warning the other party in one month. The rule does not apply if there is a reservation.
The agreement is terminated in the event of the death of a person or the liquidation of the organization.
Termination before the appointed date
The law distinguishes two groups of grounds for both parties in this regard. The lender has the right to terminate the contract ahead of time if the second party:
- uses the item for other purposes or in violation of the terms of the contract;
- Does not maintain the item in good condition;
- by their actions worsens the state of things;
- transferred the thing to a third party without the consent of the owner or his representative.
The borrower has the right to terminate the relationship for the following reasons:
- deficiencies are found that impede the normal use of things if they were not previously or could not be known at the time of the conclusion of the contract;
- the thing, for reasons that are not dependent on it, has come into a condition unfit for proper use;
- the lender has concealed the existence of third party rights to the thing;
- the thing or its accessories and / or necessary documentation was not transferred.
Termination of the contract by cancellation of it is a simpler option than termination through the court for the above reasons. An exception is a ban on refusal by the recipient of the property specified in the contract, or damage to property.
Responsibility and Risks
Responsibility for the safety of the thing lies with the recipient from the moment of the actual transfer or access to the thing. It is fixed by signing the act of transfer.
The owner of the thing has the right to file a lawsuit against the recipient if he has suffered damage or death due to improper use, or damage and death occurred after being transferred to third parties without the consent of the lender.
The right to action is retained if the acquirer had the opportunity to keep the thing, if he sacrificed his own property, but chose to do otherwise.
The lender is liable for damage caused to the thing by unauthorized persons if he does not prove the fault of the borrower or the person who owned the thing at that time with the consent of the owner (i.e. it has already been transferred by the borrower to this person).
Change in membership
The owner of a thing has the right to sell it or give it to another person during the period of validity of a previously concluded contract. Another person acquires all the rights and obligations under the previously concluded agreement, it continues to operate. For the borrower, only the person to whom he is responsible for the thing is replaced. The law does not provide for the termination of the contract due to a change in ownership or of a person having the right to transfer the object for use.
The death or liquidation of the owner organization shall retain its rights and obligations under the contract.
If the same events occur with the recipient of the loan, then his rights and obligations do not transfer to the assignee, unless otherwise provided by the previously concluded agreement.