Purchase and sale as a real contract: a critique of the transactional nature of the tradition

Abstract

The article presents a critical analysis of the prevalent view in civil law literature, which holds that for a real contract to be concluded, the transfer of an object from one party to another is necessary alongside the agreement. This perspective logically contradicts the understanding of a real contract as one that is considered concluded upon the transfer of the property. In this regard, the author proposes a new wording for paragraph 2 of Article 433 of the Civil Code of the Russian Federation: “If the parties agree upon the transfer of the object at the conclusion of the contract, from the moment of which the performance of the contract begins, the law may provide that such a contract is deemed concluded from the moment of transfer.” The author argues against the validity of the concept that, since a real contract of gift does not create any obligation, it is a contract concluded solely by the transfer of the object to the donee, without any agreement. The essence of the real gift contract lies in the fact that, by concluding it, the donor expresses the intention to transfer the object to the donee, without being obligated to do so, as the gift contract is only considered concluded at the moment of transfer.