Contract for Replacement of Ideal Parts!


Contract for Replacement of Ideal Parts!

 
The subject of the replacement contract can also be an ideal part of the thing. What is more, in practice, the replacement of an ideal part is preferable to its sale, as the limitation of Art. 33 ЗС. It arises from the fact that, unlike the purchase contract, the replacement owner acquires a specific consideration - the right to ownership of another piece of property, an ideal part of such a thing or a limited right over it. This consideration can not be provided to it by the other co-owners of the chattel, such as the opportunity to pay a certain sale price. Therefore, they do not have the right to buy under the same conditions when replacing an ideal piece of the thing. Of course, in the cases where the contract of exchange hides the conclusion of a sale, the interested co-owners may file a request for revealing the relative simulation and request the purchase of the transferred ideal part on the basis of Art. 33 ЗС.
 
Interest is the hypothesis in which the subject of both counterparty contracts under the contract of exchange are ideal parts of different belongings belonging to the same persons. In this case, the substitutes own in the co-ownership the objects subject to their obligations under the replacement contract. Only replacements or, in addition, third parties may participate in the co-ownership. The conclusion of the contract will lead to a change in the size of the shares held by each borrower, possibly leading to the termination of the participation of one of them in the co-ownership of one of the common items. In spite of the existing disputes in legal doctrine, it is common ground that in cases where the transfers carried out lead to the final liquidation of the co-ownership, we will face not a replacement but a voluntary division contract2. The conclusion of this contract will be subject to the simplified form under Art. 34 ЗС.
 
The substitution agreement may have as its object an ideal part of a thing that is usually owned by coercive co-ownership.
 
For example, the replacement of ideal parts is possible in the common parts of the condominium in connection with the use of the possibility to separate parts that are common only to some of the condominium owners. According to Art. 38, para. 2 of the BC may be agreed, the parts of the building that serve only some of the separately held floors or parts of floors should be common only to the persons whose premises are serviced. Achieving such an arrangement may lead to the formation of several communities in which different floor owners are involved. The realization of the provision in Art. 38, para. 2 of the Optional Act leads to the concentration of ownership of the relevant common parts in favor of the actual serviced by these parties. Therefore, the arrangement under Art. 38, para. 2 of the Act of Accession should be recognized as a transfer effect - the ideal parts of the common parts that are generally owned by all the floor owners are transferred. Floor owners, whose premises are not served by the common areas, transfer their ideal parts to the other floor owners. However, in cases where, in turn, they receive ideal parts of other common areas serving only the premises they own, the effect is analogous to that of the replacement parts agreement.
 
Until the conclusion of a contract for the replacement of an ideal piece of property owned under coercive co-ownership, the matrimonial property community can be reached after the adoption of the Personal Income Tax Act (ISAF). According to the provision of Art. 27, para. 1, item 2 of the Social Insurance Act, in cases where one spouse is registered as a sole trader, the other may transfer to his advantage the ideal part of the right of ownership of a property belonging to a matrimonial property community in order to be included in the commercial enterprise. For this purpose, the consent of the spouse-non-trader must be given in writing with a notary certification of the signature. We are faced with the transfer of a fictitious3 ideal part of the general property, as a result of which the latter becomes an individual property of a merchant spouse and, as part of its commercial enterprise, secures its creditors. This transfer can be done both free of charge and against the assumption of a certain counterpart on the part of the merchant spouse. In the event that the transfer of a certain right in rem is agreed as a consideration for the spouse of a merchant, it must be his personal property. It can not transfer an ideal part of another item to the CEA regime, unless the provision of Art. 27, para. 1, item 2 of the Personal Income Tax Act - ie if the other has the status of a sole trader. In the latter case, each of the two spouses-traders transfers (replaces) their ideal part of an object SIO against


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Contract for Replacement of Ideal Parts! Contract for Replacement of Ideal Parts!