Contract for vehicle without crew. A vehicle rental agreement without the provision of management and technical maintenance services. Car rental agreement without crew

G. _________________ ___________________

1. Subject of the agreement

1.1. The Lessor transfers for temporary possession and use to the Lessee a vehicle owned by the Lessor.1.2. Characteristics vehicle:
– brand –
– registration plate –
– identification number (VIN) –
- type -
– category –
– year of manufacture –
– engine – No.
- color -
– engine power (kW/hp) –
– vehicle passport –
– vehicle registration certificate – series ____-__________________________- No. 1.3. The vehicle is equipped with additional equipment – ​​_____________________________________________________, payment for the use of which is included in the rental fee.1.4. The vehicle provided for rent belongs to the Lessor by right of ownership.1.5. The rented vehicle will be used by the Lessee for ________________________ (indicate methods or directions of use of the vehicle, for example: for transporting passengers, cargo, luggage).1.6. The Lessor is obliged to transfer to the Lessee according to the acceptance certificate (Appendix No. 1) vehicle. The act indicates: the technical condition of the vehicle, the completeness of the vehicle, information about the documentation for the vehicle, other information.1.7. After the expiration of the contract, the Lessee is obliged to return the vehicle according to the acceptance certificate within 15 days.

2. Rights and obligations of the parties

2.1. The Lessor has the right: 2.1.1. Monitor the intended use of the vehicle provided under this agreement and ensure its safety; 2.1.2. Terminate this agreement early if the Tenant is late in paying the rent within _____________ from the date of payment. 2.2. The lessor is obliged: 2.2.1. Timely hand over to the Lessee the vehicle specified in Section 1 of the agreement in a condition that meets the terms of the agreement and provide the documents necessary for its operation; 2.2.2. Maintain the vehicle in a technical condition that ensures its safe operation, carry out routine and major repairs of this vehicle, provide it with the necessary spare parts and accessories during the term of the contract; 2.2.3. Provide __________ (advisory, informational, other) assistance for the most effective use of the rented vehicle; 2.3. The tenant has the right: 2.3.1. Carry out any lawful actions to ensure the operation of the vehicle in accordance with the goals of the Lessee; 2.3.2. Conclude civil agreements with third parties on the use of the vehicle in accordance with the purposes of the Lessee, provided that the fulfillment of obligations arising from these agreements will not contradict the purpose of the vehicle and the purposes of its use. 2.4. The tenant is obliged to: 2.4.1. Accept the vehicle and use it in accordance with the terms of the contract and the purpose of the vehicle; 2.4.2. Maintain the vehicle in good condition, ensure its safety and completeness; 2.4.3. Bear the costs associated with the operation of the vehicle, its insurance, including insurance of your liability; 2.4.4. Make rent payments on time; 2.4.5. Return it at the end of the contract in good condition, taking into account normal wear and tear

3. Payment procedure

3.1. Rent for using a vehicle _________________________________ rub. monthly.3.2. The tenant is obliged to pay rent monthly no later than _____________ numbers To every month following the billing month.

4. Duration of the contract

4.1. The contract was concluded for a period of ____________________________ 20__ By _________________20__ year. 4.2. Each party has the right to refuse to fulfill the contract by notifying the other party in writing no later than ____________________. At the same time, obligations not fulfilled at the time of refusal, including those related to repairs and payment of maintenance costs, remain with the parties.

5. Responsibility of the parties

5.1. For violation of the deadline for payment of rent, the Tenant shall pay the Lessor a penalty in the amount ___________________ percent of the unpaid amount for each day of delay.5.2. For violation of the deadline for handing over the car or documents provided for in the agreement, the Lessor shall pay the Lessee a penalty in the amount ______________________ percent of the monthly rent for each day of delay.5.3. In case of guilty actions of the Lessee or persons for whose actions he is responsible in accordance with the law or contract, death or damage to the vehicle occurs, the Lessee is obliged to compensate the Lessor for the losses caused by this.5.4. The obligation to compensate for damage caused to third parties by the vehicle, its mechanisms, devices and equipment in the absence of the Lessee’s fault rests with the Lessor. Moreover, if the damage arose through the fault of the Lessee, then the Lessor has the right to demand from him compensation for amounts paid in the form of a penalty or compensation for losses to third parties.5.5. Payment of a penalty (fine, penalty) and compensation for damages do not relieve the parties from fulfilling their obligations and taking measures aimed at eliminating violations.

6. Dispute resolution

6.1. Disputes and disagreements that may arise during the execution of this agreement will, if possible, be resolved through negotiations between the parties.

6.2. If it is impossible to resolve disputes through negotiations, the parties submit them for consideration to ___________. (indicate the location of the arbitration court)

7. Addresses, signatures and bank details parties

The agreement is drawn up in two copies having equal legal force, one for each of the parties. Attached to this agreement is ______________________

Situations where employees use their personal property for business purposes occur quite often in practice. Reimbursement of expenses incurred by the employee can be carried out either in accordance with Art. 188 of the Labor Code of the Russian Federation (by agreement of the parties), or in accordance with Art. 606 of the Civil Code of the Russian Federation (when concluding a lease agreement). We propose to consider the second option for formalizing the relationship between the institution and the employee.

Situations where employees use their personal property for business purposes occur quite often in practice. This may be due to various reasons, in particular the lack of serviceable official transport. Reimbursement of expenses incurred by the employee can be carried out either in accordance with Art. 188 of the Labor Code of the Russian Federation by agreement of the parties, or in accordance with Art. 606 of the Civil Code of the Russian Federation when concluding a lease agreement. In this case, we propose to consider the second option for formalizing the relationship between the institution and the employee.

Before an institution begins to use an employee’s personal car for business purposes, the manager must make an appropriate decision and conclude a contract with the employee. Therefore, first we suggest you find out what renting a vehicle is from the point of view of civil law.

What is a vehicle rental agreement?

The period of use of the property is established by both parties; if it is not provided for, the lease agreement is considered to be concluded for an indefinite period (Article 610 of the Civil Code of the Russian Federation).

In accordance with Art. 606 of the Civil Code of the Russian Federation, under an agreement, the lessor (tenant) provides the lessee (tenant) with property for a fee for temporary possession and use or for temporary use. If the property is movable, then notarization or state registration of this agreement is not required.

It should be noted that there are two types of vehicle rental:

• rental of a vehicle with a crew (Article 632 of the Civil Code of the Russian Federation);
• rental of a vehicle without a crew (Article 642 of the Civil Code of the Russian Federation).

Renting a vehicle with crew	Renting a vehicle without a crew
Under a lease agreement for a vehicle with a crew, the lessor provides the lessee with a vehicle for a fee for temporary possession and use and provides its own services for its management and technical operation (Article 632 of the Civil Code of the Russian Federation)	Under a lease agreement for a vehicle without a crew, the lessor provides the lessee with a vehicle for a fee for temporary possession and use without providing services for its management and technical operation (Article 642 of the Civil Code of the Russian Federation)
The rental agreement for a vehicle with a crew (without a crew) must be concluded in writing, regardless of its term (Articles 633, 643 of the Civil Code of the Russian Federation)

We would like to draw attention to the provisions of Art. 635 Civil Code of the Russian Federation. If an institution enters into a lease agreement for a vehicle with a crew, then, by virtue of the rules set out in paragraph 2 of this article, the crew members are employees of the lessor. They are subject to the lessor's instructions regarding the management and technical operation, and the lessee's instructions regarding the commercial operation of the vehicle.

Unless otherwise provided by the lease agreement, the costs of paying for the services of crew members, as well as the costs of their maintenance, are borne by the lessor.

Based on the foregoing, it follows that if a vehicle rental agreement is concluded with one of the organization’s employees, then by definition it will be a vehicle rental agreement without a crew, since an employee of the institution cannot have such a relationship with himself.

Rent: what should be included in the contract?

The lease agreement is paid, that is, the property is leased for a fee. It must indicate the terms of the amount of rent and the timing of its payment. In the event that they are not specified in the agreement, it is considered that the procedure, conditions and terms usually applied when leasing similar property under comparable circumstances are established.

Based on clause 2 of Art. 614 of the Civil Code of the Russian Federation, it is permissible to pay rent not only in hard form monetary amount. A possible payment option is to offset the tenant's costs for improving the leased property.

It should be noted: the tenant has the right to demand a corresponding reduction in the rent if, due to circumstances for which he is not responsible, the conditions of use provided for in the lease agreement or the condition of the property have significantly deteriorated (clause 4 of Article 614 of the Civil Code of the Russian Federation).

Who bears the cost of car repairs?

The repairs will depend on the type of vehicle rental agreement (with or without a crew).

As can be seen from the table above, if the employer has entered into a lease agreement with a crew, then the costs of current and major repairs are borne by the lessor; if a lease agreement has been concluded without a crew, this type of expense is borne by the lessee.

In this regard, it would be appropriate to note the following. Article 612 of the Civil Code of the Russian Federation provides for the liability of the lessor for shortcomings in the leased property. In accordance with the provisions of this article, if deficiencies are discovered, the tenant has the right, at his own discretion, to do the following:

• demand from the lessor either the elimination of defects in the property free of charge, or a proportionate reduction in the rent, or reimbursement of its expenses for eliminating the defects in the property;
• directly withhold the amount of expenses incurred by him to eliminate these deficiencies from the rent, having previously notified the lessor;
• demand early termination of the contract.

At the same time, the lessor is not obliged to be responsible for the shortcomings of the leased property if (clause 2 of Article 612 of the Civil Code of the Russian Federation):

• they were agreed upon when concluding the lease agreement and were known to the tenant in advance;
• should have been discovered by the tenant during an inspection of the property or checking its serviceability when concluding an agreement or transferring the property for rent.

Additionally, we note that in addition to the costs of current and major repairs, there are also costs associated with the operation of the vehicle (in particular, for the purchase of fuels and lubricants). In accordance with Art. 636, 646 of the Civil Code of the Russian Federation they are borne by the tenant, regardless of the concluded agreement.

Who bears the costs of compulsory motor liability insurance?

By virtue of paragraph 1 of Art. 4 Federal Law dated April 25, 2002 No. 40-FZ “On compulsory civil liability insurance of vehicle owners,” vehicle owners are required to insure the risk of their civil liability, which may occur as a result of causing harm to the life, health or property of others when using vehicles.

As provided for in Art. 637 of the Civil Code of the Russian Federation, unless otherwise established by the lease agreement for a vehicle with a crew, the obligation to insure the vehicle and (or) insure liability for damage that may be caused by it or in connection with its operation rests with the lessor in cases where such insurance is obligatory by law or contract. Thus, when concluding a lease agreement with the crew, the costs of compulsory motor liability insurance are borne by the lessor.

If an institution has drawn up a rental agreement for a car without a crew, then the costs of its maintenance and insurance, including insurance of its liability, are borne by the lessee (Article 646 of the Civil Code of the Russian Federation). At the same time, there is judicial practice which states that the lessee should not insure civil liability in case of damage caused by a rented vehicle, if the appropriate insurance is carried out by the lessor and the insurance policy does not provide for a limitation on the list of persons allowed to drive (Resolution of the Federal Antimonopoly Service ZSO dated 12.02 .2009 No. F04-730/2009(211-A27-8)).

Who is responsible for damage caused by a car?

In this case, there are also features depending on the concluded agreement.

Let us recall that according to the provisions of Ch. 59 of the Civil Code of the Russian Federation, in particular:

• harm caused to the person or property of a citizen, as well as harm caused to the property of a legal entity, are subject to compensation in full by the person who caused the harm (Article 1064 of the Civil Code of the Russian Federation);
• if damage is caused by an employee of a legal entity, liability for compensation for damage is assigned to (Article 1068 of the Civil Code of the Russian Federation).

We draw the attention of readers that in accordance with Art. 640 of the Civil Code of the Russian Federation, the lessor has the right to submit a recourse claim to the lessee for reimbursement of amounts paid to third parties if he proves that the damage arose through the fault of the lessee.

What is the basis for paying rent to an employee?

If an institution has concluded a lease agreement for a vehicle without a crew from the employees of the institution, then the question arises: what document will be the basis for paying the rent?

Note: the document confirming that the property has been transferred from the lessor to the lessee is the transfer and acceptance certificate. This document signifies the occurrence of obligations to pay rent. There is no unified form of the act, so you can use the act of acceptance and transfer of an object of non-financial assets (f. 0504101), approved by Order of the Ministry of Finance of the Russian Federation No. 52n, or draw it up in a free form, which must meet the requirements established by Federal Law dated December 6, 2011 No. 402-FZ “On Accounting” for primary accounting documents. Analytical accounting of such property is carried out in a quantitative and total accounting card material assets(f. 0504041) in the context of lessors and (or) owners (balance holders) of property for each object of non-financial assets and under the inventory (account) number assigned to the object by the balance holder (owner) specified in the acceptance certificate (other document) (clause 334 Instructions No. 157n).

Should personal income tax be withheld from rent?

An institution that rents a vehicle from an individual (including its employee) and pays him rent is recognized as tax agent according to personal income tax (clauses 1, 2 of article 226 of the Tax Code of the Russian Federation). Therefore, upon actual payment of this amount to the lessor or on his behalf to third parties, the institution must withhold personal income tax (clause 1, clause 1, article 223, clause 4, article 226 of the Tax Code of the Russian Federation).

An employee's income is taxed at a rate of 13% (clause 1 of Article 224 of the Tax Code of the Russian Federation). If the lessor is not a resident of the Russian Federation, his income is taxed at a rate of 30% (clause 3 of Article 224 of the Tax Code of the Russian Federation).

It is necessary to pay personal income tax to the budget no later than the day of actual receipt of cash from the bank for payment of rent or the day of its transfer to the landlord’s account (clause 6 of Article 226 of the Tax Code of the Russian Federation). The date of actual receipt of such income is considered the day of its payment (clause 1, clause 1, article 223 of the Tax Code of the Russian Federation).

Is the rental amount subject to insurance premiums?

In accordance with paragraph 3 of Art. 7 of Federal Law No. 212-FZ, paragraph 1 of Art. 5, paragraph 1, art. 20.1 of Federal Law No. 125-FZ, payments and other remunerations made under civil law contracts, the subject of which are:

• transfer of ownership or other proprietary rights to property (property rights);
• transfer of property (property rights) for use.

Thus, there is no need to pay rent on the amount of the property used.

How to take into account rental expenses when calculating income tax?

Costs of payments for the use of property under a lease agreement are classified as other expenses associated with production and (or) sales (clause 10, clause 1, article 264 of the Tax Code of the Russian Federation). Thus, the entire amount under the lease agreement is taken into account when calculating income tax (Letter of the Ministry of Finance of the Russian Federation dated December 1, 2009 No. 03-03-06/1/780).

How to reflect the cost of paying rent in accounting?

Expenses for paying for the rental of property in accordance with the Instructions on the procedure for applying the budget classification of the Russian Federation, approved by Order of the Ministry of Finance of the Russian Federation dated July 1, 2013 No. 65n (hereinafter referred to as Instructions No. 65n), are included in subarticle 224 “Rent for the use of property” of the KOSGU.

Accounting for settlements with the lessor is kept on account 302 24 “Settlements for rent for the use of property” (clause 21 of Instruction No. 157n). The credit of this account reflects the accrual of rent, and the debit reflects its transfer to the employee’s bank account (or its withdrawal from the institution’s cash desk). In this case, the analytical account code is 109 00 “Production costs finished products, performance of work, services” is determined by the provisions of the organization’s accounting policies.

Let's consider an example of reflecting the costs of renting an employee's property.

Between the School of Olympic Reserve, which is a budgetary institution, and employee A. I. Kulikova, on June 01, 2015, a rental agreement without a crew was concluded for the use of her personal car. According to the agreement, the rent is 4,200 rubles. per month. The cost of the property transferred under the contract is 850,000 rubles.

Expenses are made from funds received from paid services.

The accountant of a budgetary institution, in accordance with Instruction No. 174n, will do the following accounts:

			Amount, rub.
The car of employee A.I. Kulikova was accepted according to the acceptance certificate
The amount of rent accrued for June 2015
Personal income tax accrued (RUB 4,200 x 13%)
Personal income tax transferred to the budget
Receipt of funds to the institution's cash desk from a personal account opened with OFK is reflected	2 210 03 560 2 201 34 510	2 201 11 610 2 210 03 660
The payment of the car rental amount to an employee from the institution's cash desk is reflected.

How to reflect the costs of maintaining a rented car in accounting?

As noted above, if an institution has drawn up a rental agreement for a car without a crew, then the costs of its maintenance and insurance, including liability insurance, are borne by the lessee. In addition, in connection with the conclusion of a lease agreement, the institution has expenses related to the operation of the car - for the purchase of fuel and lubricants.

In accordance with Instructions No. 65n, expenses for payment for property, civil liability and health insurance services should be attributed to subarticle 226 “Other work, services” of KOSGU, expenses for the purchase of fuels and lubricants – to article 340 “Increase in the cost of inventories” of KOSGU.

Let's look at an example of reflecting the costs of maintaining a rented car.

The Sports Palace, which is an autonomous institution, has entered into a lease agreement for a vehicle without a crew for a year. In accordance with the agreement, the costs of compulsory motor liability insurance are borne by the tenant. Let's assume that the insurance premium is 12,000 rubles. and is paid from funds received from the provision of paid services. Expenses for the purchase of fuels and lubricants for August 2015 amounted to 7,080 rubles. (including VAT 18% - 1,080 rubles) (the figures in the example are conditional).

The accountant of an autonomous institution, in accordance with Instruction No. 183n, will make the following accounts:

			Amount, rub.
Funds were transferred to the insurance company
Reflected expenses for compulsory motor liability insurance*
During the insurance year, deferred expenses are allocated to the current period on a monthly basis. financial result (RUB 12,000 / 12 months)
Purchased fuel and lubricants for a rented car
Input VAT reflected
Payment was made to the supplier for purchased fuels and lubricants
Issued fuel and lubricants for a rented car**

* An important point to pay attention to is that, in accordance with paragraph 1 of Art. 10 of Federal Law No. 40-FZ, the validity period of a compulsory insurance contract is one year, with the exception of cases for which this article provides for other validity periods of such a contract. Because of this, expenses of an autonomous institution incurred in the reporting period, but related to future periods, should be reflected as deferred expenses.

** Write-off of fuel and lubricants is carried out on the basis of waybills, which make it possible to determine the regularity of use, as well as the route of the rented cars and the time of their use. According to the Federal Tax Service, to account for expenses on fuel and lubricants when calculating income tax, this document is required (Letter of the Federal Tax Service for Moscow dated April 30, 2008 No. 20-12/041966.1). The tax authorities, in Letter No. ШС-37-3/15988@ dated November 22, 2010, also insist on issuing waybills.

Let us briefly formulate the main conclusions:

1. An institution that rents a vehicle from an individual (including its employee) and pays him rent is recognized as a tax agent for personal income tax.
2. There is no need to pay insurance premiums on the rental amount for the property used.

Order of the Ministry of Finance of the Russian Federation dated March 30, 2015 No. 52n “On approval of forms of primary accounting documents and registers accounting, applied by authorities state power(state bodies), bodies local government, management bodies of state extra-budgetary funds, state (municipal) institutions, and Guidelines for their application.”

Instructions for the application of the Unified Chart of Accounts for public authorities (state bodies), local governments, management bodies of state extra-budgetary funds, state academies sciences, state (municipal) institutions, approved. By Order of the Ministry of Finance of the Russian Federation dated December 1, 2010 No. 157n.

Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund.”

Federal Law No. 125-FZ of July 24, 1998 “On compulsory social insurance against industrial accidents and occupational diseases.”

Instructions for using the Chart of Accounts budgetary institutions, approved By Order of the Ministry of Finance of the Russian Federation dated December 16, 2010 No. 174n.

Instructions for the use of the Chart of Accounts for accounting of autonomous institutions, approved. By Order of the Ministry of Finance of the Russian Federation dated December 23, 2010 No. 183n.

Unlike renting a vehicle with crew renting a vehicle (hereinafter referred to as a vehicle) without a crew means that the lessor simply transfers the vehicle to the lessee for temporary possession and use for a fee without providing services for driving the vehicle and its technical operation (Article 642 of the Civil Code of the Russian Federation).

From a legal point of view, it is more profitable for the lessee to enter into a vehicle rental agreement with the crew. This is explained by the fact that according to general rule under such an agreement, the tenant can share expenses with the landlord, in addition, the landlord is also responsible for damage caused to third parties. Under a rental agreement for a vehicle without a crew, expenses and responsibility fall entirely on the lessee. See table for details Advantages and disadvantages of a vehicle rental agreement with or without a crew . At the same time, obviously, the real economic needs of an organization in a number of cases require the conclusion of a vehicle rental agreement without a crew.

What features of a vehicle rental agreement without a crew are provided for in the law?

When drawing up a rental agreement for a vehicle without a crew, the lessee must use the general rental rules, but the individual characteristics of this type of agreement must also be taken into account.

First of all, some general rules of the lease agreement provided for in Article 621 of the Civil Code of the Russian Federation (Article 642 of the Civil Code of the Russian Federation) do not apply to it, namely:

• the rule on the renewal of a lease agreement for an indefinite period;

• the rule on the tenant's pre-emptive right to conclude a lease agreement for a new term.

This relieves the landlord of the obligation (subject to certain conditions) to enter into an agreement with the tenant for a new term. In this case, the general rule regarding the tenant’s pre-emptive right to conclude a lease agreement for a new term does not apply.

In addition, the lease agreement for a vehicle without a crew cannot be extended automatically. Thus, after the expiration of the period for which the lease agreement was concluded, it is considered terminated and the parties again need to express their will to conclude a new agreement for a new term.

Advice: Therefore, if the tenant wishes to continue the rental relationship, then some time before the termination of the contract it is worth sending a letter to the landlord about the desire to enter into a contract for a new term.

Question: The rental agreement for a vehicle without a crew has expired, the parties did not sign an additional agreement on extension, the tenant continues to use the vehicle, but does not pay the rent. What penalties may the tenant face (penalty, interest for using someone else’s money, damages)?

1. The lessor will not be able to collect a penalty.

A feature of a bareboat rental agreement is that such an agreement upon expiration of the rental period is not considered extended for an indefinite period. Thus, contractual provisions on penalties cannot be applied to obligations arising after the termination of contracts (Article 622 of the Civil Code of the Russian Federation).

Case study: the court declared unlawful the accrual of a penalty for failure to fulfill obligations arising after the termination of the lease agreement for a vehicle without a crew

The parties entered into two agreements under which the lessor transferred vehicles for use for loading rock mass and carrying out cargo transportation. Taking into account additional agreements, the contracts were valid until December 31, 2011. In fact, the tenant continued to use the vehicle (without paying rent) until May 2012.

The court determined that the landlord had no grounds to collect penalties from the tenant for failure to fulfill obligations that arose after December 31, 2011 (because the contracts terminated). The court stated: “the peculiarity of this type of agreement is that continuous possession of the leased item cannot have legal significance, since such an agreement, upon expiration of the lease term, is not considered extended for an indefinite period, and the leased item must be returned to the lessor upon expiration of the contract.” The court concluded that contractual provisions on penalties cannot be applied to obligations arising after the termination of contracts (Article 622 of the Civil Code of the Russian Federation). Therefore, the court refused to collect the penalty accrued after the termination of the contracts (resolution of the Federal Antimonopoly Service of the West Siberian District dated March 15, 2013 in case No. A27-13063/2012). This resolution also contains another interesting conclusion (see separate example from practice).

2. The lessor will be able to collect interest under Article 395 of the Civil Code of the Russian Federation.

The tenant runs the risk that he may be charged interest for the use of someone else's money under Article 395 of the Civil Code of the Russian Federation, which will be accrued on unpaid rent after termination of the contract.

Case study: the tenant did not pay the rent for the actual use of the vehicle after termination of the contract. The court satisfied the landlord's request to collect from the tenant the amount of debt, as well as interest for the use of other people's money

The lessor and the lessee entered into a lease agreement for a bareboat vehicle, according to which the lessor provided the lessee with two gas injection units for temporary possession and use for a fee. The parties provided for the validity of the agreement until December 31, 2010.

Since the tenant, after termination of the contract, actually continued to use the leased property, but did not pay rent for it, the landlord filed a lawsuit against the tenant to collect the arrears of rent and interest for the use of someone else’s money.

The court satisfied the claim, collecting from the tenant the amount of debt, as well as the specified interest for the period after the end of the contract, during which the tenant actually used the leased property, considering that he unlawfully used funds in the form of unpaid rent (resolution of the Federal Antimonopoly Service of the Ural District dated On June 5, 2012 No. F09-3414/12 in case No. A47-5610/2011, the decision of the Supreme Arbitration Court of the Russian Federation dated September 10, 2012 No. VAS-11820/12 refused to transfer the case to the Presidium for review in the order of supervision).

A similar example: the decision of the Second Arbitration Court of Appeal dated November 5, 2009 in case No. A29-3891/2009; left unchanged by resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 31, 2010 No. A29-3891/2009.

Ultimately, it is more profitable for the tenant if he is charged only the amount of interest for using someone else’s money, since it is usually less than the amount of the contractual penalty.

If the lessor filed a claim only with a penalty and the court refuses to collect it, the lessor can clarify his claim (clause 1 of Article 49 of the Arbitration Procedure Code of the Russian Federation), providing for a requirement to pay interest for the use of someone else's money.

3. The lessor will be able to collect rent for the period of actual use of the vehicle after termination of the contract.

To use the vehicle, you will have to pay a rental fee in the amount that was initially provided for in the contract. In this case, the tenant will be able to take advantage of all the guarantees that are provided for cases of rent increases. In particular, if the lessor unilaterally increased the rent earlier than a year after the conclusion of the contract, such an increase will be unlawful (clause 3 of Article 614 of the Civil Code of the Russian Federation). See the resolution of the Federal Antimonopoly Service of the Moscow District dated October 26, 2010 No. KG-A40/12505-10 in case No. A40-35977/10-54-230, the decision of the Supreme Arbitration Court of the Russian Federation dated December 1, 2010 No. VAS-15920/10 denied transfer of the case to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the manner of supervision.

4. The lessor will be able to demand compensation for losses.

If the insured vehicle is damaged in an accident, the lessee will have to compensate for losses in the form of the difference between the insurance compensation paid and the cost of restoration repairs (Resolution of the Federal Antimonopoly Service of the Ural District dated September 17, 2012 No. F09-6985/12 in case No. A71-11488/11).

In addition to all of the above, the tenant will have to return the vehicle, and in the event of a legal dispute, also reimburse the costs of paying the state duty (appeal ruling of the Moscow City Court dated October 4, 2012 in case No. 11-18890/12).

It is also necessary to take into account that there are certain types of vehicle rental agreements without a crew, which are regulated by special transport codes:

• contract for chartering a vessel without a crew (bareboat charter) (Article 211 of the Merchant Shipping Code of the Russian Federation);

• lease agreement for a vessel without a crew on inland water transport (Chapter X of the Code of Inland Water Transport of the Russian Federation).

For a lessee who has entered into any of these agreements, it is nevertheless important to know the general rules for renting a vehicle without a crew, provided for by civil law, since the features established by transport codes only complement or clarify them (Article 649 of the Civil Code of the Russian Federation).

Finally, the rule on registration of rental agreements established in paragraph 2 of Article 609 of the Civil Code of the Russian Federation does not apply to the rental agreement for a vehicle without a crew. This exception is provided for in Article 643 of the Civil Code of the Russian Federation.

What form is provided for a vehicle rental agreement without a crew?

The rental agreement for a vehicle without a crew is concluded strictly in writing, regardless of the rental period (Article 643 of the Civil Code of the Russian Federation). This distinguishes it from other lease agreements (as a general rule, a written form of a lease agreement is required regardless of the term, only when at least one of the parties is a legal entity; in other cases, for a property lease agreement for a period of no more than a year, the written form is optional).

If the parties do not comply with the written form of the agreement, the court may recognize it as not concluded at the request of an interested party. This may be important both for the relationship between the parties to the contract and for determining liability in the event of an accident.

Case study: the court recognized the lease agreement for a vehicle without a crew as not concluded, and the vehicle itself was transferred to the driver by proxy

Due to the fault of driver T., a traffic accident occurred involving a car belonging to the organization and a car belonging to D.

As a result of this accident, the passenger who was in D.'s car received bodily injuries. The passenger filed a lawsuit against T. in the district court and asked to recover from the defendant compensation for moral damages and the cost of paying the state duty.

The court agreed with the arguments of the defendant T. that he did not enter into a lease agreement with the organization for a car owned by it, since T.’s signature was not present in the lease agreement presented to the court. The court stated: “In accordance with Article 643 of the Civil Code of the Russian Federation, a lease agreement for a vehicle without a crew must be concluded in writing, regardless of its term. The absence of T.’s signature on the lease agreement presented to the court indicates that such an agreement was not concluded in the form required by law.”

However, this circumstance does not mean that T. is not responsible.

The court satisfied the plaintiff’s request on the basis that T. was the actual owner of the car, since the director of the organization issued a corresponding power of attorney in his name (appeal ruling of the Yaroslavl Regional Court dated March 22, 2012 in case No. 33-1417/2012).

Even if one of the parties has a copy of the signed agreement, the court may consider such a copy to be inadequate evidence. Only an authentic copy of the agreement can indicate the expression of the will of the parties to sign it.

Case study: the court granted the claim to recognize the lease agreement for vehicles without a crew as not concluded and to recover cars from someone else’s illegal possession, since a copy of the agreement does not indicate its conclusion

An individual entrepreneur filed a claim with the arbitration court against OJSC “B.” on recognizing the rental agreement for a vehicle without a crew as not concluded and on reclaiming the cars belonging to him from someone else’s illegal possession.

At the same time, the individual entrepreneur referred to the fact that the lease agreement for a vehicle without a crew with OJSC “B.” he did not conclude, did not sign, the cars of OJSC "B." were not transferred, and therefore he suffered losses in the form of lost rent.

JSC "B." presented to the court a copy of the lease agreement for a vehicle without a crew, signed on behalf of an individual entrepreneur in the form of the stamp “Roshka M.K. certificate No. 56886 dated March 27, 2002, TIN 323400246686,” which contained the signature of the plaintiff.

The court considered this document to be inadequate evidence, pointing out that it was only a copy that was not properly certified, the original of the agreement was not presented to the court, and the signature details of an individual entrepreneur in this document cannot be recognized as an expression of his will in signing and concluding the agreement. On these grounds, the court satisfied the demands of the individual entrepreneur (resolution of the Twentieth Arbitration Court of Appeal dated October 3, 2008 in case No. A09-9092/06-10, decision of the Federal Antimonopoly Service of the Central District dated January 15, 2009 No. F10-6155/08 was left unchanged ).

A written contract is not just one document signed by the parties. It can also be concluded through the exchange of letters, telegrams, telexes, telefaxes and other documents (including electronic documents transmitted via communication channels), which make it possible to reliably establish that the document comes from a party to the contract (clause 2 of Article 434 Civil Code of the Russian Federation).

It often happens in practice that the parties enter into a vehicle rental agreement without a crew in the form of signing a single document. The conclusion of an agreement occurs through the exchange of documents, for example, the parties send each other waybills, invoices, etc. Strictly speaking, in such a situation, the written form of the agreement must be considered complied with (clause 2 of Article 434 of the Civil Code of the Russian Federation). However, taking into account established practice, the court may recognize the agreement as not concluded only on the basis that the parties did not sign a separate written agreement.

On the one hand, this creates the risk of recognizing the vehicle lease agreement as not concluded at the request of the lessor. In this case, the tenant will not receive the vehicle he expected to rent, or will be forced to return it earlier than expected (see the example above).

On the other hand, this gives a certain freedom of action to the tenant himself.

How can a tenant invalidate a contract?

For the tenant, recognizing the agreement as not concluded may be beneficial in a situation where the landlord, in the absence of a formalized written agreement, demands from the tenant a rental amount greater than what was agreed upon between the parties orally. If the agreement is recognized as not concluded, and the landlord does not have other evidence of the amount of rent (for example, a waybill signed by the tenant, a report, etc.), the landlord will not be able to collect rent from the tenant.

Case study: the court rejected the claim for the recovery of rent because it recognized the vehicle lease agreement as not concluded, and also because the acceptance certificate did not reflect information allowing to identify the vehicle

LLC "Sp." filed a claim with the arbitration court against S. LLC. on the collection of debt under the rental agreement for a vehicle without a crew, declaring it terminated from the date the court decision entered into force, the obligation of the defendant to return the crawler mounting crane to the plaintiff.

Under the terms of this agreement, the lessor (LLC "Sp.") agreed to transfer the vehicles to the tenant (LLC "S.") for temporary possession and use, and the lessee agreed to pay rent in the amount and terms specified in paragraph 3 of the agreement and return the property in good condition.

The parties also signed an annex - an agreement on the amount of rent for the use of vehicles and financial liability in connection with destruction, death, loss or theft. According to the acceptance certificate, the plaintiff handed over and the defendant accepted the complete crane.

The court recognized the lease agreement for a vehicle without a crew as not concluded, since the agreement and its annexes did not make it possible to definitely establish the property to be transferred to the lessee as an object of lease. The contract lacked information about the series of the crane's passport, its registration number, serial number, year of manufacture and engine number. The vehicle acceptance certificate did not contain information allowing its identification. Due to these circumstances, the court refused to collect the rent (ruling of the Second Arbitration Court of Appeal dated August 11, 2011 in case No. A29-689/2011).

If the lessor points out to the court indirect evidence confirming that an actual contractual relationship has developed between the parties (for example, a waybill or report signed by the tenant), the court can either recognize the contract as concluded or simply recognize the actual relationship that has developed between the parties. In any case, the court will collect rent from the tenant according to this circumstantial evidence, because it indicates the actual debt of the tenant to the landlord.

Case study: the court partially satisfied the demand for debt collection for renting a vehicle without a crew, despite the fact that the contract had not been concluded. In this case, the court relied on acts of rent provided

JSC "A." filed a claim with the arbitration court against S. LLC. on the collection of debt for the actual rental of a truck crane and interest for the use of other people's funds.

JSC "A." transferred for temporary possession and use to S. LLC. truck crane on the chassis of a KAMAZ vehicle, which was confirmed by the acceptance certificate. Along with the act, the tenant was given two copies of the lease agreement signed by the landlord.

The lease agreement for a vehicle without a crew was signed by the lessee with a protocol of disagreements. The lessor did not sign the specified protocol of disagreements.

An agreement between the parties on the terms of the vehicle rental agreement without a crew, taking into account the protocol of disagreements, was not reached, and therefore this agreement was recognized by the court as not concluded. However, the court partially satisfied the requirement to collect rent arrears, since it was based on the actual relations between the parties, which was confirmed by the submitted acts on the rent provided (resolution of the Seventh Arbitration Court of Appeal dated December 15, 2010 No. 07AP-10080/10 in case No. A27- 9606/2010).

How to describe the subject of a vehicle rental agreement without a crew

The condition on the subject of the lease agreement is detailed description, which makes it possible to definitely establish movable property to be transferred to the tenant as a rental object for temporary possession and use or only for temporary use (paragraph 1 of article 606 of the Civil Code of the Russian Federation, paragraph 3 of article 607 of the Civil Code of the Russian Federation).

Therefore, the contract must indicate which vehicle is transferred to the tenant for temporary possession and use. If this is a car, then its make, state registration plate, identification number (VIN), year of manufacture, engine number and model, vehicle type and category, body number, color, engine power and displacement, vehicle series and passport number, authorized maximum weight, unladen weight, vehicle registration certificate number.

If there are a lot of vehicles, it is better to make a link to the appendix to the contract with a list of vehicles. Information about the vehicle is indicated in accordance with the title and other documents available to the lessor (for example, vehicle registration certificate, vehicle passport).

Examples of wording of the subject matter of a bareboat rental agreement

Option 1.“The Lessor undertakes to transfer to the Lessee for temporary possession and use the vehicle: GAZ-21102; registration plate - T543NE99; identification number (VIN) - ХМА211020Х0325409; type - sedan; category - B; year of manufacture - 2000; engine - No. Х02395409; color - white; engine power (kW/hp) - 51/70; vehicle passport - series 62AC No. 776059; vehicle registration certificate - series 45 EX No. 062540.”

Option 2.“The Lessor undertakes to provide the Lessee with vehicles for temporary possession and use for a fee. The list of vehicles to be transferred is specified in Appendix No. 1 to this agreement.”

What conditions regarding penalties and rent make sense to include in the contract in order to minimize the tenant’s risks?

The specifics of the vehicle as a leased item must also be taken into account when formulating conditions on the duties and responsibilities of the lessee. To minimize the tenant’s risks, it is worthwhile to include the following provisions in the contract.

1. Condition on limiting the maximum amount of the penalty.

It makes sense to limit the maximum amount of the penalty in the contract if the tenant violates his obligations. That is, to establish the maximum amount that the lessor can recover from him in the event of violation of certain provisions of the contract for which such liability is established. The most important thing is to set such a limit for cases of late rent payments.

An example of the wording of the terms of a vehicle rental agreement without a crew on the limit of the lessee’s liability

“In case of violation of the deadline for payment of rent, the Tenant shall pay the Lessor a penalty in the amount of ___ (the maximum percentage is indicated) of the amount of debt for each day of delay. The total amount of the specified penalty cannot exceed the amount of the monthly rent established in paragraph ___ of this agreement.”

In the event of a dispute, the court will be guided by this maximum amount and will reduce the amount of the penalty if the lessor unlawfully demands an amount exceeding the limit established in the contract.

Case Study: the court upheld the lessor's claim against the lessee for the collection of a penalty under the lease agreements for a vehicle without a crew, but reduced its amount, since the agreements provided for a maximum amount of the penalty

The parties entered into two agreements under which the lessor transferred vehicles for use for loading rock mass and carrying out cargo transportation. The rent under two contracts amounted to 60,000 rubles. and 45,000 rub. per month accordingly.

The parties stipulated in the agreement that in case of delay in rent payment, the tenant shall pay the landlord a penalty in the amount of 1 percent of the debt amount for each day of delay, but not more than a month’s rent.

The tenant was late in paying rent for several months. As a result, the lessor demanded payment of the debt for months of non-payment (600,000 rubles and 620,000 rubles under two contracts) and a penalty in the total amount of 2,410,650 rubles. Since the tenant did not fulfill this requirement, the landlord filed a lawsuit against the tenant to collect debt under the agreements and penalties.

The court agreed with the lessor on the issue of accrual of rent arrears (600,000 rubles and 620,000 rubles), but satisfied the requirements for penalties only in the amount of 105,000 rubles.

At the same time, the court referred to the condition of the agreement that, regardless of the period of actual delay, the penalty accrued on the entire amount of the debt cannot exceed the amount of the monthly rent (60,000 rubles - under agreement No. 1 and 45,000 rubles - under agreement No. 2). The court, based on the literal content of the terms of the contract, considered the plaintiff’s argument that he has the right to charge a penalty on the amount of debt for the monthly rent to be unfounded (resolution of the Federal Antimonopoly Service of the West Siberian District dated March 15, 2013 in case No. A27-13063/2012). This resolution also contains another interesting conclusion (see separate example from practice).

2. Condition for exemption from payment of rent (under certain circumstances).

The tenant should provide in the contract the conditions under which he is exempt from paying rent. For example, if the vehicle was under repair through no fault of the tenant. That is, if it was a planned repair or if the need for repairs arose due to the fault of the lessor (for example, if it can be proven that the defects arose before the transfer of the vehicle to the lessee due to improper care of the vehicle or its improper operation).

An example of the wording of the terms of a rental agreement for a vehicle without a crew on the basis for exempting the lessee from paying rent

“In the event of the need for scheduled repairs or repairs, the need for which arose through the fault of the Lessor, the Lessee transfers the Vehicle to the Lessor for carrying out the appropriate repairs according to the acceptance certificate. The return of the Vehicle to the Lessee is also made on the basis of the acceptance certificate indicating in it the actual time the Vehicle spent in the relevant repair, as well as this clause of the agreement as the basis for its implementation. In this case, the Lessee is exempt from paying rent in proportion to the actual time of the Vehicle’s stay under the appropriate repair specified in this act.”

It is important for the tenant to ensure that the act of departure from the lease necessarily indicates the basis for such disposal with reference to the specific clause of the agreement that refers to such a basis. If there is no such reference, the court may side with the landlord, indicating that such an act does not refer to a contractual basis for exempting the tenant from paying rent.

Case study: the court satisfied the lessor's request to collect rent arrears from the lessee, since in the acts of withdrawal of diesel locomotives from lease there was no reference to withdrawal from lease on the grounds provided for in the lease agreement for vehicles without crew

JSC "R." (lessor) and LLC "N." (lessee) entered into a lease agreement for locomotives without providing the services of a locomotive crew.

The landlord filed a lawsuit to collect the rent debt, penalties and interest for the use of other people's money.

The lessee presented the court with acts of withdrawal of diesel locomotives from the lease. Since the leased diesel locomotives were undergoing unscheduled repairs and were returned to the lessor, the lessee believed that there was no rent arrears to the lessor and that there was an overpayment of rental amounts. To recover these amounts, the tenant filed a counterclaim.

The court found that in the agreement the parties provided for the grounds for both the calculation of rent and for exemption from its calculation. At the same time, the parties to the agreement established specific grounds for exemption from paying rent, namely, the presence of diesel locomotives under scheduled repairs or due to the fault of the railway.

The court indicated that the lessee’s “acts of acceptance and transfer of locomotives from the lease indicated that the locomotives were removed from the lease due to their technical malfunction, without marks or references to planned repairs or to repairs the need for which arose due to the fault of the lessor.”

In this regard, the court considered that there were no grounds for exempting the tenant from paying for the rental of diesel locomotives according to the acts of withdrawal of diesel locomotives from the lease presented by him, and satisfied the lessor’s claim (ruling of the Twentieth Arbitration Court of Appeal dated February 25, 2013 in case No. A09-6771/2012 ).

The company rents a car without a driver. What are the features of a bareboat rental agreement?

The tenant company needed transport. You can rent a car with or without a driver. When a company signs a contract for a car without a driver, this does not include the services of the lessor for driving the car and its technical operation (). Costs and responsibilities under the bareboat rental agreement lie with the lessee.

Renting a vehicle without a crew: features of an agreement with a legal entity

The following applies to contracts for a car:

• general rental standards,
• special rules for bareboat charter agreements.

In particular, according to Art. 621 of the Civil Code of the Russian Federation there are general rules:

• the contract can be renewed for an indefinite period,
• The tenant has a pre-emptive right to renegotiate.

But these rules do not apply to rental agreements for vehicles without a crew (Article 642 of the Civil Code of the Russian Federation). When the contract expires, the tenant company will need to specifically renew it. And the landlord has the right to refuse to do this, since the tenant does not have a preemptive right. If the tenant company still needs the transaction, you need to agree in advance with the counterparty to extend the lease.

In addition, in this case the requirement for mandatory registration of the agreement does not apply (Article 643 of the Civil Code of the Russian Federation).

For some types of vehicle rental agreements without a crew between legal entities, there is a special legal regulation. For example:

• for chartering a vessel without a crew, they rely on;
• The rental of a vessel without a crew in inland water transport is concluded taking into account.

When concluding agreements of this type, one must be guided not only by the general rules of lease, but also by these provisions.

A special rule also applies to the form of the vehicle rental agreement. Such an agreement must be drawn up in writing, even if its parties are individuals, and the transaction term is less than a year (Article 643 of the Civil Code of the Russian Federation). If this rule is violated, the court will recognize the contract as not concluded. Moreover, this is possible even if there is a copy of the contract. A copy of the original must be presented to the court.

As a general rule, writing does not consist only of signing a single document (Article 434 of the Civil Code of the Russian Federation). But due to specific judicial practice, it is better to conclude a bareboat lease agreement in the form of a single document. Otherwise, the court will have the prerequisites to recognize the contract as not concluded.

When transferring property under an agreement, a transfer deed is drawn up.

Subject and important terms of the vehicle rental agreement without crew

A sign of the conclusion of an agreement is the agreement of all essential conditions (Article 432 of the Civil Code of the Russian Federation). First of all, this is the subject of the contract. In the section about the subject, describe in detail what kind of movable property you are renting (paragraph 1 of article 606 of the Civil Code of the Russian Federation, paragraph 3 of article 607 of the Civil Code of the Russian Federation). When renting one car, indicate in the agreement:

• brand,
• state registration sign,
• year of manufacture,
• engine number and model,
• car type and category,
• body number,
• car color,
• engine power and displacement,
• series and number of the vehicle passport,
• permissible maximum weight,
• weight without load,
• car registration certificate number.

If you rent several cars, draw up an annex to the contract. In the appendix, list all the vehicles and make a detailed list of data for each.

What conditions should a lessee include in a bareboat rental agreement?

To reduce the tenant's risks, include the following conditions in the bareboat rental agreement:

1. On limiting the maximum amount of the penalty. The agreement may stipulate that in the event of a breach of contract, the tenant will not have to pay more than the specified amount. If the landlord demands a higher amount, the court will support the tenant and reduce the penalty.
2. On exemption from rental payments upon the occurrence of special circumstances. Such a condition in the rental agreement for a vehicle without a crew allows the lessee not to pay in these cases. For example, a car needed repairs through no fault of the tenant. Stipulate that you do not need to pay for the downtime period. Make sure that this point is referenced in the deed of departure from the lease.

We continue the series of articles devoted to compiling various types contracts and tax aspects arising for each of the parties. In this material, 1C:ITS specialists will talk about the rental agreement for a vehicle without a crew. Three articles will be devoted to this type of agreement. From the first article, you will learn what you should first pay attention to when concluding an agreement, what conditions must be included in it, and you will also find examples of wording that will be useful to you when drawing up a rental agreement for a vehicle without a crew. The next two articles will talk about what the tax consequences of concluding this agreement may be for the tenant and the landlord.

What is a bareboat vehicle rental agreement and who can enter into it?

Under a lease agreement for a vehicle (vehicle) without a crew, the lessor provides the lessee for a fee with a vehicle for temporary possession and use without providing services for its management and technical operation (Article 642 of the Civil Code of the Russian Federation).

The parties to a bareboat rental agreement are the lessor and the lessee. The law does not limit the list of persons who can act as parties to an agreement. They can be individuals, individual entrepreneurs and legal entities. In this case, the lessor must be the owner of the property or a person authorized by law or the owner to rent out this property (Article 608 of the Civil Code of the Russian Federation).

The relations of the parties to the agreement in question are governed by both the provisions of Section 2, Paragraph 3, Chapter 34 of the Civil Code of the Russian Federation, and the general provisions on lease enshrined in Paragraph 1 of Chapter 34 of the Civil Code of the Russian Federation (Article 625 of the Civil Code of the Russian Federation), with some exceptions.

Rental Features individual species vehicles without a crew are determined by special standards established by industry codes and charters (for example, the Air Code of the Russian Federation, the Merchant Shipping Code of the Russian Federation).

In what form should a vehicle rental agreement without a crew be concluded?

The rental agreement for a vehicle without a crew is concluded in simple written form, regardless of its validity period, including if it is concluded for an indefinite period (Article 643 of the Civil Code of the Russian Federation).

Please note that the objects of a bareboat rental agreement may include vehicles that are legally considered real estate (aircraft, sea vessels, inland navigation vessels).

Such agreements are also concluded in simple written form and are not subject to state registration (Article 643 of the Civil Code of the Russian Federation).

Thus, regardless of the type of rental object and the validity period, the rental agreement for a vehicle without a crew does not need to be registered.

What is the subject and object of the contract?

A rental agreement for a vehicle without a crew must necessarily contain conditions regarding the subject and object of the agreement.

The subject of this agreement is the obligations of the parties to provide a vehicle for temporary possession and use without providing services for its management and operation, as well as to pay fees for such possession and use.

Please note that when formulating the subject of the contract, there is no need to mention the provision of services to the lessee for driving and operating the vehicle. This is a fundamental point that distinguishes a bareboat rental agreement from a crewed vehicle rental agreement.

The leased object is what the lessor transfers to the lessee for temporary possession and use.

The object of the contract under consideration can only be a vehicle, that is, a technical device that simultaneously has three characteristics:

• its use is possible only with qualified management and proper technical operation (Article 645 of the Civil Code of the Russian Federation);
• it is intended for transporting goods, passengers, luggage, towing objects and is capable of moving in space along with them (Article 647 of the Civil Code of the Russian Federation);
• it has signs of a source of increased danger (Article 1079 of the Civil Code of the Russian Federation).

In particular, the objects of a rental agreement for a vehicle without a crew may be:

• aircraft;
• sea ​​vessels;
• vessels used in inland waters;
• railway rolling stock;
• trucks, tractor-trailers with semi-trailers, excavators and cranes, others technical devices on automobile traction;
• passenger cars.

Horse-drawn transport, which involves the use of manpower (animals) as an engine, does not belong to vehicles. Carts, strollers, carts, bicycles, scooters also cannot be the object of a rental agreement for a vehicle without a crew. They can be rented out under a regular rental agreement or rental agreement.

The contract must specify in as much detail as possible the individual characteristics of the rented vehicle, distinguishing it from other similar vehicles (Clause 3, Article 607 of the Civil Code of the Russian Federation). In the absence of this data in the contract, the condition regarding the object to be leased is considered inconsistent, and the lease agreement itself is considered unconcluded.

EXAMPLE of wording of a contract term

How to specify the term of the contract?

The term of the lease determines the period of time during which the lessee has the right to use the leased item and is obliged to pay rent for it. This period in the lease agreement for a vehicle without a crew is determined general provisions about rent.

Who should maintain the vehicle?

Work on the maintenance and servicing of a vehicle includes work aimed at maintaining its condition, which guarantees normal and safe operation (regular cleaning and cleaning of the vehicle, preventive measures, repairs (routine and major), supplying the vehicle with the necessary accessories, equipment and mechanisms , for example, for loading and unloading, etc.

The serviceable technical condition of the vehicle is confirmed by passing a technical inspection.

It is the lessee who is obliged to provide vehicles for technical inspection, since it is he who operates the vehicle (Resolution of the Federal Antimonopoly Service of the Moscow District dated April 10, 2008 No. KG-A41/2566-08 in case No. A41-K1-2854/07). Therefore, the terms of the contract should not impose such an obligation on the lessor.

Who is required to insure a vehicle?

According to Article 646 of the Civil Code of the Russian Federation, the lessee is required to insure the vehicle and his liability during its operation.

However, the contract can assign such an obligation to the lessor.

In addition, the lease agreement for a bareboat vehicle can provide for the distribution of insurance costs between the lessee and the lessor, for example, by type of insurance risk.

EXAMPLE of wording of a contract term

According to Article 930 of the Civil Code of the Russian Federation, property can be insured under an insurance contract in favor of a person who has an interest in preserving this property. The beneficiary (that is, the person who, according to the insurance contract, receives compensation upon the occurrence of insured event) can be both the lessor and the lessee of the vehicle. Who exactly is the beneficiary depends in each case on the terms of the insurance contract.

In addition, in the text of the lease agreement for a vehicle without a crew, in addition to the obligation to insure the vehicle and liability for damage caused by it, you can also indicate which party to the agreement should be indicated in the insurance agreement as a beneficiary.

EXAMPLE of wording of a contract term

As for compulsory third party liability insurance (MTPL), the law does not clearly indicate who is the beneficiary in the event of an insured event - the lessor or the lessee.

Article 1 of Federal Law No. 40-FZ dated April 25, 2002 “On compulsory civil liability insurance of vehicle owners” states that the victim is a person whose life, health or property is harmed.

Based on this formulation, we can conclude that the beneficiary is the lessor (as the owner of the property) rather than the tenant.

Who bears the costs of maintaining and operating the vehicle?

As a general rule, the costs of maintaining a rented vehicle are borne by the lessee (Article 646 of the Civil Code of the Russian Federation). However, other provisions can be stipulated in the contract, completely or partially attributing such expenses to the lessor.

EXAMPLE of wording of a contract term

The question of whether the cost of maintaining the vehicle should be borne by the lessor remains open.

In judicial practice there is no clear opinion on this matter.

In some cases, courts recognize such a condition of the contract as corresponding to the Civil Code of the Russian Federation (see resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 22, 2002 No. A28-3903/01-164/22), at the same time, there are court decisions according to which the condition for the implementation of repairs of a vehicle by the lessee at the expense of the lessor contradict the Civil Code of the Russian Federation, since it does not imply the obligation on the lessor to bear such expenses (resolution of the Federal Antimonopoly Service of the Moscow District dated March 22, 2006 No. KG-A40/1980-06-1 in case No. A40-5033/05-22- 51).

The costs associated with the operation of the vehicle are also borne by the lessee (Article 646 of the Civil Code of the Russian Federation). This applies to costs associated with the commercial and technical operation of the vehicle. These include, in particular, the costs of materials that are consumed during operation: fuels and lubricants, components and parts that are subject to regular replacement, costs of parking, parking or placement in a garage, etc. The terms of the lease agreement can also be completely or partially attribute these costs to the landlord.

EXAMPLE of wording of a contract term

How to set the rent in the contract?

Based on paragraph 2 of Article 614 of the Civil Code of the Russian Federation, rent can be set both for all leased property as a whole, and for each of its parts (for example, when several cars are rented).

The law provides for the possibility of setting rent in various forms - see table 1.

Table 1. Form of rent and examples of wording of contract terms.

Rent in the form of	An example of the wording of a contract term
fixed payments (certain amounts that are paid by the tenant at a time or periodically);	The rent is 690,571 rubles per month. The rental fee is 1,290,567 rubles for the entire rental period of the Vehicle and is paid at a time no later than 5 working days from the date of signing this Agreement.
shares of income, fruits or products obtained as a result of the use of leased property;	The rent is 3 percent of the total income, determined on the basis of the Tenant's tax reporting based on the results of the reporting period. tax period. Transfer of rent by the Tenant is made no later than 10 calendar days from the end of the reporting tax period.
certain services provided by the tenant;	As rent, the Tenant provides the Lessor with a garage box owned by the Tenant, located at Moscow, st. Starting, possession 56, for the repair of Lessor's cars for the entire duration of this Agreement.
transfer by the lessee to the lessor for lease or ownership of the thing specified in the contract;	As rent for the entire period of validity of this Agreement, the Tenant transfers to the Lessor the ownership of the following property: Metal containers for transporting goods in the amount of 14 pieces.
the tenant's costs for improving the leased property;	As a rental payment for the entire period of validity of this Agreement, the Lessee makes the following improvements to the Vehicle: engine replacement, replacement of wheel rims.
a combination of these forms of rent.	The rental fee consists of a permanent monthly rental payment in the amount of 690,571 rubles, as well as deductions in the amount of 3 percent of the Tenant’s quarterly revenue received as a result of the use of the leased Vehicle.

In addition, you can add other options for paying rent, since the list provided is not exhaustive.

It should be borne in mind that for periods when the vehicle was not actually used through no fault of the lessor, the lessee is obliged to make rental payments until the vehicle is returned to the lessor.

How to establish a condition for the purchase of a leased vehicle?

The leased property can be purchased by the tenant.

The purchase of a vehicle leased under a lease agreement for a vehicle without a crew is carried out according to the general rules (Article 624 of the Civil Code of the Russian Federation). In particular, the redemption condition must indicate the redemption price and the procedure for its payment.

The vehicle can be purchased by the lessee both after the expiration of the lease agreement and before its end.

EXAMPLE of wording of a contract term

The Lessee has the right to purchase the Vehicle upon expiration of the lease period. The redemption price is 350,000 rubles. The transfer of ownership of the Vehicle from the Lessor to the Lessee is possible only subject to full payment of all rental payments under this Agreement and payment of the redemption price in full, about which the Parties draw up a final settlement act. The Lessee has the right to purchase the Vehicle before the expiration of the lease term. The redemption price is 350,000 rubles. The vehicle becomes the property of the Lessee only upon full payment of all rental payments under this Agreement and payment of the redemption price in full, about which the Parties draw up a final settlement act.

The redemption value of the property, which the tenant must pay to the lessor, can be either included in the rental payments or set separately from them.

EXAMPLE of wording of a contract term

Lease payments may be included in payment of the redemption price in whole or in part. Thus, payment of the redemption price may include, for example, half of each rental payment or the entire rental payment.

EXAMPLE of wording of a contract term

In the case when the redemption price is included in the lease payments, it is paid simultaneously with them, and there is no need to indicate separately the timing of such payments - it is enough to determine the timing of making lease payments.

Otherwise, it is also advisable to establish in the contract the terms within which the redemption value of the property must be transferred to the lessor.

These could be, for example, calendar dates determined by the parties, a certain date of each month, etc.

EXAMPLE of wording of a contract term

So, we have looked at issues common to the parties that are important to cover in a bareboat rental agreement. The next issue of the magazine "BUKH.1S" will consider the practical aspects of the execution of the contract from the point of view of the tenant.

All information provided can be found in the ITS PROF system in the “Legal Support” section (see Fig. 1).