Keys of the sale for person to designate

purchase and sale person to appoint

¿Es posible realizar uncontrato de compraventa a favor de persona por designar”?

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 Concept of sale for person to designate

Nowadays, is collected, for example, in provincial law (“Contract with power of subrogation" -law 514 of the Compilation of the Foral Civil Law of Navarra–), en el Italian Civil Code (“contract for person to name" -articles 1401 a 1405–) or in the Portuguese Civil Code (“contract for person to appoint" -articles 452 a 456–). In the field of common law, the figure that has received the greatest influence is the admission of bids to public auctions, reserving the power to transfer the auction to a third party, as provided in Article 647.3 Act 1/2000, of 7 January, de Enjuiciamiento Civil. Como es conocido, not regulated in the Civil Code (onwards, CC), but it appeared in France and Italy in the fourteenth and fifteenth centuries with the main purpose of saving when dealing with feudal taxes, thereby promoting commercial contracting.

The compraventa in favor of person to designate, also known as "purchase and sale with the power to designate buyer", or sale "For choosing a friend”, It is a modality of the traditional contract of sale, affected by the regime of the "contract for person to designate". In this modality of sale, party, called stipulator, reserves the right to appoint a third person at a later time, which, once designated, and if you accept such designation, will occupy the position of buyer, assuming the rights and obligations derived from the contract and displacing the first stipulator from it, that is completely separated from the legal relationship.

Constitutive elements

Strictly speaking, The purchase and sale contract for the person to be designated takes place when the following elements are present:

i) A seller who expresses his decision to sell a certain thing for a certain price;

ii) Other part, stipulator or provisional buyer, manifests its decision to acquire that good for that price, satisfying it in cash or partially.

iii) An additional agreement contained in the sale contract, by virtue of which the stipulator or provisional buyer reserves the right to decide whether to intervene in the legal business in his own name or on behalf of a third party, reserving the power to designate, if, who is that third party, that we will call definitive buyer;

iv) A manifestation of will in which the provisional buyer designates the definitive buyer, and this, and the embroidery, accept such designation.

Purpose and nature of the sale for person to designate

The contract of sale for person to designate can pursue several purposes, how can i be) constitute a form of indirect representation, allowing the ultimate buyer to remain hidden from the seller, thus limiting the business capacity of the latter; ii) hold a fiduciary business, when for whatever reason, spurious or not, the definitive buyer prefers not to appear as the buyer of the property, Providing the funds to the provisional buyer to celebrate the sale; y iii) provide a brokerage or brokerage service, in the cases in which the provisional buyer has not yet found the definitive buyer, and thereby assuming the risk of the operation - in exchange, as discussed, of significant savings on the tax bill-. The acquisition takes place, so, originally, there is only one transmission.

The nature of this type of contract accepts various interpretations. So, it can be concluded that this is an assumption of indirect representation, of a fiduciary legal business, of a contract with a stipulation in favor of a third party, of a transfer of contract, of a perfect and consummate sale in favor of the provisional buyer, or perfect but not consummated, pending designation of the final buyer, or even perfect and consummate, but in favor of the definitive buyer, simultaneously submitted as a condition precedent to the realization of said designation.

Validity in our legal system

It is a contractual modality whose legal validity is fully recognized. In that sense, the RDGRN of 11 June 2015 (BOE 178 of 27 July), concluded on this type of contract that the principle of autonomy of the will, contained in the article 1.255 CC, It allows not only that the parties can modify or replace the discipline corresponding to a certain type of contract, but also that they can configure their business relationship without having to adjust to the types established by law., attending to the specific business interests that, through their business relationship, aim to satisfy in each case.

In the same sense, recalled that in contracts of the type "designation of a third party", the indeterminacy of a possible beneficiary does not hinder the perfection of the sale contract, indeterminacy that ends with the designation of said beneficiary, with effects "from then”From the moment of the perfection of the contract, in such a way that the beneficiary must be considered to have been the holder of the contract since its inception, so there is title and so, insofar as the title constitutes the public deed of sale, in which the third beneficiary is designated as the buyer, and the way, represented by the traditio instruments covered by the article 1.462 Civil Code.

Taxation of the sale in favor of a person to be designated

We have already anticipated that this type of recruitment can be carried out for multiple and varied personal motivations, from avoiding a possible liability for defects of the thing sold to hiding the identity of the final purchaser. However, if there is a purpose that is recognized as intrinsically pursued by the doctrine in this type of contracts -or, in other words, one of its most widely recognized utilities- is to avoid generating intermediate legal relationships that would be subject to the corresponding tax lien.

In that sense, the STS 21 November 1997 already indicated that this contractual modality "It has emerged with great emphasis on current commercial and economic life, in order to avoid reduplicated operations and above all to avoid or avoid various tax actions from a tax point of view ”. These words have inspired other resolutions, like the STS of 20 April 2004, that referred to the practice of this contractual modality in order to “Avoid duplication of costs”, or the SAP of Alicante of 17 February 2004, that indicates the cause of the extension of the practice in "The need to avoid duplicated operations and tax actions of a fiscal nature".

These purposes have caused the Administrative-Central Economic Court to understand that, in the development of purchase and sale contracts in favor of a person to be appointed,, at least, of legal business: the first transmission, from seller to buyer, and the second, from buyer to designated beneficiary, transmissions that will be subject to the corresponding Property Transfer Tax (ITP). To this double tax should be added, under the circumstances, the taxation that would correspond to the assignment of the contractual ownership, well to ITP, if the transferor has received consideration, or to inheritance and gift tax (ISD), if the transferor acted free of charge, what is usually the norm in this type of contracts.

As you can see, This position is in direct conflict with the interpretation of civil law made by our Supreme Court., that in sentences like 2 March 2007 and 16 June 2008 serves the ultimate purpose of the contract, and concludes that the intervening parties do not act under a plurality of contracts, but they want a single transmission and a single acquirer.

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