Subject of the replacement contract.Replacement of items

 

 

1.1. Replacement of items

 

The subject of the replacement contract may be different items. Depending on the agreement of the parties, it is possible to conclude a contract for the exchange of ownership over one property against the ownership of several items. Obligations under the substitution agreement may also be substitutable and non-movable, movable and immovable property, generic or individually defined objects, etc. Replaceable items may be of different types: movable against immovable property, substitutable against a disposable item, individually determined against a generic property, etc. in cases where the owner of the property is the state and the municipality1, apply special rules in connection with the formation and expression of their will. Replacing a masterpiece, unless otherwise agreed, results in the transfer of the property and its accessories. If any of the replacements at the time of the conclusion of the replacement contract has been lost, the contract will be void due to the initial impossibility of its object (Article 184, paragraph 1 of the CPA).

 

In a special case of substitution we will face the mutual transfer of ownership of homogeneous substitutable objects of the same kind. When the debt obligations of both parties occur at the same time, the conditions for offsetting will be in place - each of the borrowers will be able to demand the set-off of their obligation with that of the other. These are two counterpart obligations to provide homogeneous and substitutable items, each of which is required and liquid (Article 103, paragraph 1 of the CPA).

 

In cases where the obligations have a different maturity, the relationship will resemble those of a consumer loan agreement: one party undertakes to place a certain property in the ownership of the other, which in turn undertakes to transfer to the benefit after the expiration of a certain period of the first ownership of an item of the same type (Article 240, paragraph 1 of the CPA). Although the eligibility of such a Preliminary Contract is controversial in view of the real nature of the consumer loan, its effect will be achieved through the substitution agreement.

 

The conclusion of a contract for the replacement of future items, including unpaid fruits by the mother mother, should produce its substantive law under the postponement condition - the occurrence of the future thing. Future property may be subject to the obligation of only one party or both parties to the contract. In the first case, the transferring effect of the contract in respect of the consideration, which has its subject-matter available, may be postponed by the parties until the future thing arises. The parties may have agreed and vice versa - after the expiration of a certain deadline, during which the future thing did not occur, the partial transfer transaction effect has ceased. A third option is also possible - the replacement, in whose favor the transfer of the future item is agreed, takes the risk of its non-occurrence. In this case, the partial substance effect of the replacement contract on the available item is final.

 

Where the subject matter of both counter-claims is real rights in the future, the parties may reach different arrangements in respect of each of them, depending on who assumes the risk of not starting up any of the future items.