The problem of bona fide home purchasers: the long-awaited position of the RF Armed Forces. Bona fide purchaser: judicial practice Subject to requisition from a bona fide purchaser

1. If property was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not know (a bona fide acquirer), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred into possession by the owner, or stolen from one or the other, or left their possession in some other way against their will.

2. If property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to reclaim the property in all cases.

3. Money, as well as bearer securities, cannot be demanded from a bona fide purchaser.

Commentary on Article 302 of the Civil Code of the Russian Federation

1. By introducing restrictions on vindication and thereby ensuring a balance of interests of the owner and the bona fide purchaser, the law is based on the principle of “lesser evil”. The established vindication procedure is based on several interrelated criteria: a) conscientiousness (bad faith) of the acquirer; b) consideration (free of charge) for the acquisition of property; c) the nature of the disposal of property from the owner’s possession.

2. Thus, in all cases, the property of a bona fide and paid purchaser is subject to vindication if it was disposed of against the will of the owner. This rule is based on the assumption that a bona fide acquirer can protect his interests by making appropriate claims against the alienator, whose identity is either known to him or is more likely to be established.

In turn, the rules on vindication in relation to an unscrupulous purchaser apply regardless of whether the property was acquired free of charge and due to what circumstances it left the owner’s possession. This is explained by the fact that the bad faith of the acquirer excludes the presence of any advantages over the owner.

If the property was acquired free of charge, vindication is allowed regardless of criteria such as bad faith and circumstances of disposal. It is believed that in the case of a gratuitous acquirer, the interests of the owner are recognized as priority, since when reclaiming property, the illegal owner does not incur any property losses caused by the acquisition of the thing, and Art. 303 of the Civil Code guarantees reimbursement of expenses for maintaining property.

3. However, in the described procedure for unconditional vindication, the following restrictions are established.

Firstly, from clause 1 of the commented article it follows that if property acquired in good faith and for compensation has left the owner’s possession at his will, including as a result of concluding lease agreements, storage, etc., vindication is impossible (clause 19 of VAS letter No. 13). It is assumed that in such cases the owner bears the risk of choosing an inappropriate counterparty, which is why priority is given to protecting the interests of the acquirer.

Secondly, paragraph 3 of the commented article establishes a ban on the vindication in good faith and, most importantly, of gratuitously acquired money and bearer securities. It is believed that the reasons for introducing this rule are, in particular, the need to ensure the stability of civil turnover, taking into account the high turnover of these things; difficulties with the individualization of property (for example, money is recognized as purely generic things, and vindication is possible only in relation to individually defined property). True, this rule is formulated unreasonably strictly. If we assume that in a particular case, money or bearer securities were initially individualized in a certain way (including by sealing in an envelope, etc.) and such individualization was preserved at the time the claim was filed, then it is hardly possible to see objective obstacles to vindication .

Thirdly, a comparison of clauses 1 and 2 of the commented article allows us to conclude that the rule about the possibility of vindication in the case of gratuitous acquisition has one more exception, when a chain of bona fide purchasers arises, and the thing is vindicated from the person who received it gratuitously from a bona fide paid the acquirer (for example, as a result of donation, inheritance, etc.). In this case, the solution to the issue of vindication should be based on the provisions of paragraph 1 of the commented article on the recovery of property from a paid purchaser, since otherwise the latter would be unreasonably limited in the disposal of the thing.

4. It should be noted that the application of the rules on vindication is difficult due to the impossibility of legally formalizing the content of the criteria used. Thus, the concept of “bad faith” is disclosed in the Civil Code through such evaluative and subjective signs as “(did not) know or (did not) should (could) know.” Therefore, when assessing bad faith, all relevant specific circumstances of the case must be taken into account (in particular, the characteristics of the thing, price, time and place of acquisition, etc.).

For example, judicial practice is based on a lack of good faith, when at the time of the completion of a compensated transaction there were claims of third parties, which were subsequently recognized as justified if the acquirer knew about them (paragraph 4, paragraph 24 of the Supreme Arbitration Court Resolution No. 8). However, in view of the presumption of good faith enshrined in the legislation (clause 3 of Article 10 of the Civil Code), the acquirer is not obliged to prove the existence of circumstances confirming his good faith. Therefore, it is difficult to agree with the opposite conclusion made in paragraph. 3 clause 24 of the Supreme Arbitration Court Resolution No. 8.

Likewise, the Civil Code does not disclose the concept of “disposal of property against the will of the owner.” The legislator limits himself to pointing out individual examples (in particular, loss, theft of a thing) and making the list open-ended. Obviously, this does not contribute to uniform and adequate enforcement of law, especially in conditions when the highest courts avoid giving appropriate explanations (see paragraph 26 of the Supreme Arbitration Court Resolution No. 8). Thus, there is no consensus on whether the disposal of property against one’s will should be considered “other cases,” for example, transactions involving the alienation of property without obtaining the necessary consent (approval) of the guardianship and trusteeship authorities, bodies of a legal entity, etc. Therefore, at present, this problem should be solved in each specific case, taking into account all the actual circumstances, while the owner must prove the circumstances of the disposal of the property from his possession (paragraph 2, paragraph 24 of the Supreme Arbitration Court Resolution No. 8).

Reclaiming property from a bona fide purchaser is permissible in a number of cases. What should be the grounds for such a seizure, what cannot be claimed, and what can the acquirer injured in the event of seizure count on - we will discuss these and other questions in this article.

Is it possible to reclaim property from a bona fide purchaser?

It would seem that if a person has made a purchase of an item legally, no one has the right to deprive him of this acquisition. Nevertheless, the procedure for reclaiming property from a bona fide purchaser is quite possible. Of course, cases when such a claim is allowed are strictly regulated by law.

Here you should be guided by Art. 302 of the Civil Code of the Russian Federation. It provides for the following conditions when property can be reclaimed:

1. The property was received by the acquirer free of charge under an agreement that was concluded by a person who does not have authority in relation to this property. Moreover, the owner who has lost the thing will need to prove only 2 of the above facts. In this case, no other conditions are required to claim the thing.

   Whether a transaction is paid or not is determined by:

   • receipt by the alienating person of remuneration in money, material or intangible benefits or other consideration;
   • compliance with the obligation to pay remuneration in full and on time.

   Thus, in accordance with paragraph 37 of the joint resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22, if by the time the acquirer learned of the illegality of the alienation, he had not made full payment, the property is considered to have been received free of charge.

2. The property was acquired on a compensation basis, but was lost by the owner or his authorized person. Such cases also include the theft of a thing or other removal from his possession against the will of the owner.

   It should be noted that in accordance with clause 10 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 13, 2008 No. 126, the transfer of a thing under a transaction cannot be recognized as a disposal of property against the will of the owner, even if it was subsequently declared invalid.

Property may be seized from a bona fide purchaser if he or she fails to exercise due diligence

We will not find such a concept as due diligence of a bona fide acquirer when concluding a transaction in the Civil Code of the Russian Federation. Nevertheless, this stable formulation is very common in judicial practice concerning the issue of confiscation of an item from a bona fide purchaser.

It is based on the following legislative postulates:

• clause 1 art. 302 of the Civil Code of the Russian Federation, which prescribes that the acquirer can be considered in good faith only if he did not know and did not have the opportunity to find out about the lack of authority of the seller to dispose of the subject of the transaction;
• clause 1 art. 401 of the Civil Code of the Russian Federation, by virtue of which a person is considered innocent if he showed such a degree of care and prudence that was necessary based on the legal nature of the obligation.

What does the court understand by the exercise of due, reasonable, ordinary diligence? Let's take a closer look:

1. The obvious disproportionately low price of the property being sold should arouse suspicion in the buyer about the seller (clause 9 of information letter No. 126). The court noted that the buyer, having discovered a significant undervaluation of the price, should have exercised caution and additionally checked the purity of the transaction.
2. The presence of encumbrances (including a lien), as well as any inconsistencies discovered during the inspection of the property before its purchase, should have aroused suspicion in the buyer (Review of judicial practice in cases related to the reclaiming of residential premises from bona fide purchasers on claims of government agencies and local government bodies, approved by the Presidium of the RF Armed Forces on October 1, 2014).
3. The absence of a record of the ownership of the seller of real estate in the Unified State Register of Real Estate, as well as the presence of a record of a legal dispute in relation to the property, the completion of multiple transactions with it in a short period of time are also an unconditional reason for the buyer to have doubts about the legal purity of the transaction (clause 38 of Resolution No. 10 /22).

Note! Due diligence is assessed by the court not only in relation to the acquirer of the thing, but also to the seller. Thus, in the Review of the Presidium of the Supreme Court of the Russian Federation dated October 1, 2014, the court noted that the government agency did not show due diligence when concluding a transaction to transfer the apartment, and therefore cannot demand its seizure, citing the lack of will of the owner to alienate the property.

Money cannot be claimed from a bona fide purchaser

1. By Resolution of the 9th Arbitration Court of Appeal dated February 19, 2015 No. 09AP-59436/2014-GK, it was refused to claim from the bank the funds written off by it to pay off the loan, despite the fact that formally the funds were subject to return to the pension fund for the reason death of a pensioner.
2. By resolution of the same court dated August 5, 2016 No. 09AP-32721/2016, the bankruptcy trustee was refused to claim from the bank the funds transferred to it by the bankrupt enterprise, since the bank was recognized as a bona fide purchaser.

Note! It is necessary to distinguish the demand for money from a bona fide purchaser from the recovery of unjust enrichment in accordance with Chapter. 60 Civil Code of the Russian Federation. Thus, in the appeal ruling of the Moscow City Court dated January 16, 2015 in case No. 33-759/2015, the defendant argued that she was a bona fide purchaser of the funds she received from the sale of an apartment under an agreement that was subsequently declared invalid. However, the court indicated that funds received under an invalid contract constitute unjust enrichment and, as a result of applying the consequences of invalidity of the transaction, must be returned.

In addition to cash, the following securities (securities) are not allowed to be claimed:

• Central Bank to bearer;
• order and registered securities certifying a monetary claim (clause 3 of article 147.1 of the Civil Code of the Russian Federation);
• Central Bank in undocumented form, certifying only the monetary right of claim (Article 149.3 of the Civil Code of the Russian Federation);
• Securities in book-entry form acquired at organized auctions.

When requesting a Central Bank in documentary form, you should be guided by the features given in Art. 147.1 Civil Code of the Russian Federation.

What can the acquirer count on if the property was seized?

Let's consider what compensation measures the legislator has provided for a bona fide purchaser if the property was nevertheless confiscated from him.

1. The acquirer retains the separable improvements made by him to the seized property. If the improvements are inseparable, the bona fide purchaser has the right to compensation for the expenses incurred by him for such improvements. In accordance with Art. 303 of the Civil Code of the Russian Federation, the amount of compensation is limited by the amount of the increase in the value of the seized property.
2. The acquirer who failed as a result of the seizure of the thing has the right on the basis of Art. 461 of the Civil Code of the Russian Federation to require compensation from the seller for all losses incurred. Let us name two nuances when considering such requirements:
   • Firstly, the seller is released from liability if he can prove that the buyer knew or had the opportunity to know about the existence of grounds for possible seizure of the goods.
   • Secondly, according to Art. 462 of the Civil Code of the Russian Federation, the seller should be involved in the consideration of a vindication claim. Otherwise, the seller may also be released from liability if he can prove that the claim could have been prevented (clause 43 of resolution No. 10/22).
3. If housing has been demanded from a bona fide purchaser, the legislation provides for compensatory measures in this case, financed from budget funds. We are talking about compensation in the amount of up to 1 million rubles, provided for by the law “On state registration of rights to real estate and transactions with it” dated July 21, 1997 No. 122-FZ (Article 31.1).

Important! These rules will be valid until 01/01/2020. Then the compensation articles of the new law “On State Registration of Real Estate” dated July 13, 2015 No. 218-FZ, in Art. 68 of which also provides for a similar protective measure.

In conclusion, we emphasize once again that the seizure of property from a bona fide purchaser is possible, but only if there are grounds enshrined in the law. Money and some securities cannot be reclaimed. In the event of seizure of goods, a bona fide buyer has the right to compensation for losses, and in the event of seizure of housing, to measures of state support of a compensatory nature.

1. If property was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not know (a bona fide acquirer), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred into possession by the owner, or stolen from one or the other, or left their possession in some other way against their will.
2. If property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to reclaim the property in all cases.

3. Money, as well as bearer securities, cannot be demanded from a bona fide purchaser.

Commentary on Article 302 of the Civil Code of the Russian Federation

1. Clause 1 of the commented article lists the conditions under which the owner does not have the right to reclaim his property from someone else’s illegal possession. This restriction is associated with the need to ensure priority protection of the interests of another participant in trade turnover - a bona fide purchaser.

It is very important to correctly determine who is a bona fide purchaser under Art. 302. As indicated in his Resolution No. 6-P dated April 21, 2003 “In the case of verifying the constitutionality of the provisions of paragraphs 1 and 2 of Article 167 of the Civil Code of the Russian Federation in connection with complaints from citizens O.M. Marinicheva, A.V. Nemirovskaya, Z. .A. Sklyanova, R.M. Sklyanova and V.M. Shiryaev" Constitutional Court of the Russian Federation, ". good faith acquisition in the sense of Article 302 of the Civil Code of the Russian Federation is possible only when the property is acquired not directly from the owner, but from a person who did not have the right to alienate This is property." (SZ RF, 2003, N 17, art. 1657). Consequently, at least three persons are always involved in such a dispute: 1) the owner; 2) a person who did not have the right to alienate the thing, but did so; 3) bona fide purchaser. Accordingly, a vindication claim is brought by the owner (1) against the bona fide purchaser (3).

2. In order for the owner’s claim to be denied, the bona fide purchaser must prove:

a) that he did not know and should not have known about the acquisition of property from a third party who did not have the right to alienate it (clause 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8).

This explanation of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 is increasingly being criticized and, apparently, needs to be cancelled. Protection of a bona fide purchaser under Art. 302 is a type of protection under paragraph 3 of Art. 10 GK. According to the latter, in cases where the law makes the protection of civil rights dependent on the reasonableness and conscientiousness of the actions of participants in civil legal relations, their reasonableness and conscientiousness are assumed.

Consequently, a bona fide purchaser under Art. 302 does not have to prove that he did not know and should not have known about the acquisition of the thing from a third party who did not have the right to alienate it. In the case, for example, of acquiring real estate, it is enough for him to refer to the fact that he acquired it from a person whose ownership of real estate is registered (Article 131 of the Civil Code, Article 2 of the Law on Registration of Rights to Real Estate).

On the contrary, the person filing the vindication claim must prove that the acquirer acted in bad faith. For example, in one of the cases it was established that a legal entity, having received non-residential premises from the owner under a lease agreement, subsequently sold it to another legal entity. Since it turned out that the defendant, when purchasing the property, did not know and should not have known that the seller was not the owner, the owner’s vindication claim was denied (Bulletin of the Supreme Arbitration Court of the Russian Federation, 1998, No. 12, p. 71).

It should be borne in mind that the buyer cannot be recognized as a bona fide purchaser if, at the time of the transaction for compensation, there were legal claims on its subject matter by third parties, about which the buyer was aware and which were recognized as legitimate in the prescribed manner (clause 24 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation N 8);

b) that he acquired the thing in exchange.

The exception is the case when it can be proven that the disputed property has left the possession of the owner or the person to whom it was transferred into possession by the owner against their will (lost, stolen, etc.).

The application of these grounds in relation to real estate may cause certain difficulties. Thus, it is impossible to lose real estate due to its natural properties. However, the theft of real estate using documents that were forged, and the real estate was sold on behalf of the owner; its sale by the legal representative of a minor contrary to the interests of the latter; sale of real estate by heirs without taking into account the inheritance rights of other heirs; sale by the head of a legal entity of real estate owned by a legal entity in excess of authority - all these are cases of disposal of property from the possession of the owner or the person to whom the owner transferred the property into possession, against their will. Consequently, in these cases, the property can be returned to the owner even from a bona fide purchaser.

The presence in the actions of the owner of the will to transfer the property excludes the possibility of reclaiming it. For example, after the division of property under a settlement agreement approved by the court, one of the spouses, using a vindication claim, tried to return the car from the person to whom it was sold by the other spouse. The fact that the car was transferred to the other spouse voluntarily served as the basis for refusing the plaintiff’s claim (Bulletin of the Supreme Court of the RSFSR, 1991, No. 2, p. 14).

3. Clause 2 of the commented article contains an independent basis for satisfying the vindication claim of the owner against a bona fide purchaser. This is a situation when the acquirer receives an item from third parties free of charge.

For example, an owner leases out his property, after which the tenant dies. The heirs of the tenant, having taken possession of the property and not knowing the true owner, consider themselves to be such. In such circumstances, the owner's vindication claim will be satisfied, despite the transfer of the property into the possession of the deceased tenant at the will of the owner and its receipt in good faith by the heirs. This is explained by the fact that the disputed property was transferred to the heirs free of charge and the tenant had no right to alienate it.

4. Paragraph 3 of the commented article provides another basis for resolving a dispute between the owner and a bona fide purchaser. According to the law, money (Article 140 of the Civil Code) and bearer securities (Chapter 7 of the Civil Code), as the most negotiable objects of civil law, cannot be demanded from a bona fide purchaser under any circumstances.

5. For some time, arbitration courts and courts of general jurisdiction answered the question about the so-called. competition between a vindication claim and a claim to invalidate a purchase and sale transaction with the return of property to the owner in the manner of bilateral restitution. The fact is that, having received a refusal in a vindication claim, the owner often tries to solve the problem of returning his property by filing lawsuits to declare all transactions on its alienation invalid. Often he does this without filing a vindication claim.

According to paragraph 25 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8, if, when resolving a dispute about invalidating a purchase and sale transaction and returning the property transferred to the buyer, it is established that the buyer meets the requirements of Art. 302 to a bona fide purchaser, the owner’s claim must be denied.

Courts of general jurisdiction, on the contrary, satisfied such claims regardless of the good faith and reasonableness of the actions of the acquirer of the thing. Such judicial practice led to the fact that citizens O.M. Marinicheva, A.V. Nemirovskaya, Z.A Sklyanova, R.M. Sklyanov and V.M. Shiryaev appealed to the Constitutional Court of the Russian Federation with complaints about the violation of their constitutional rights by the provisions of paragraphs. 1 and 2 tbsp. 167 Civil Code. In their opinion, on the basis of this article and as a result of the practice that has developed in courts of general jurisdiction, owners have the opportunity to demand the return of what they received in kind, not only when it comes to the first transaction made in violation of the law, but also when the disputed property was acquired by a bona fide purchaser in on the basis of subsequent (second, third, fourth, etc.) transactions.

The Constitutional Court of the Russian Federation, in its Resolution No. 6-P dated April 21, 2003, recognized the general provisions of paragraphs. 1 and 2 tbsp. 167 of the Civil Code on the consequences of invalid transactions that do not contradict the Constitution. At the same time, the Constitutional Court of the Russian Federation ruled that the general provisions on the consequences of invalid transactions in terms of the obligation of each party to return everything received under the transaction do not apply to a bona fide purchaser (Article 302 of the Civil Code), unless otherwise expressly provided by law.

Thus, if the owner applies to the court with a claim to declare the transaction invalid and to apply the consequences of its invalidity, and during the consideration of the case it turns out that the acquirer is in good faith (Article 302 of the Civil Code), the owner’s claim should be denied. Currently, a similar approach is reflected in the practice of the Supreme Court of the Russian Federation (Bulletin of the Supreme Court of the Russian Federation, 2004, No. 4, p. 2).

In the future, the owner will be able to return the item only by filing a vindication claim in court if he manages to prove the existence of the grounds provided for in paragraph 1 of Art. 302.

6. Beyond the scope of the Civil Code and the Resolution of the Constitutional Court of the Russian Federation was the solution to the question of whether it is possible to recognize a bona fide purchaser as the owner of property in the case where a vindication claim against him cannot be satisfied. There is reason to believe that in these cases the property becomes the property of a bona fide purchaser.

It is in this sense that the Plenum of the Supreme Arbitration Court of the Russian Federation spoke in the already mentioned paragraph 25 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8.

It seems that the final solution to this issue should be given in law.

7. The Civil Code, following the Laws on Property in the USSR and the RSFSR, abandoned the principle of unlimited (regardless of the good faith of the acquirer) vindication of state, cooperative and public property (Article 153 of the Civil Code of 1964). Such property can be claimed by the owner on a general basis.

8. The Civil Code also abandoned what was previously enshrined in Part 2 of Art. 152 of the Civil Code of 1964 prohibits the owner from reclaiming property sold in execution of a court decision. Now the owner can demand it in compliance with the rules of Art. 301 and 302 of the Civil Code (clause 26 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8).

However, in order to give additional guarantees to the rules for the acquisition of real estate sold in enforcement proceedings, the debtor or bailiff is required to register the debtor's ownership of this real estate before holding a public auction. According to sub. 3 p. 3 art. 62 of the Law on Enforcement Proceedings, the certificate of state registration of ownership of real estate, together with other documents characterizing the object, must be transferred to a specialized organization conducting auctions (clause 17 of the Review of the practice of resolving disputes related to the application of the Federal Law "On State Registration of Rights to Real Estate property and transactions with it" - appendix to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 N 59 - Bulletin of the Supreme Arbitration Court of the Russian Federation, 2001, No. 4).

Another comment on Article 302 of the Civil Code of the Russian Federation

1. The commented article adopted one of two approaches to the problem of vindication claims, developed by the historical experience of world civil law.

In Roman law, the scope of a vindication claim was not limited. The owner has always had the right to vindicate his thing in accordance with the principle “where I find my thing, there I vindicate it.”

The opposite approach was developed by the law of a number of medieval cities (mainly German). There, the owner was deprived of the right to reclaim his property if it was sold by an unauthorized alienator. The acquirer received protection from the owner in accordance with the principle “Hand muss Hand wahren” (“the hand must provide the hand”). These cities lived on trade, and the point of this withdrawal was to protect the clientele of local merchants who came to the city to shop. If a visitor purchased an item from a person who openly traded at the city market, then he did not have to worry about the fact that the owner who suddenly showed up would then vindicate this item from him. On the surface, this looks like protection for the acquirer. However, ultimately, this approach ensures the economic interests of primarily trade intermediaries, as well as other sellers of goods, as it promotes sales and, therefore, accelerates the turnover of capital.

The historical experience of civil law shows that both unlimited and limited vindication correspond to the interests of a market economy. In the law of modern countries with developed market economies, as a rule, both approaches are combined. The vindication of immovable property is unlimited, but the vindication of movable property is limited. In the field of real estate, the interests of protecting property rights are of paramount importance, and in the field of movables, the interests of facilitating turnover are prioritized. It turns out that in these countries there has been a well-established system for registering rights to real estate for centuries.

1. If property was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not know (a bona fide acquirer), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred into possession by the owner, or stolen from one or the other, or left their possession in some other way against their will.

2. If property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to reclaim the property in all cases.

3. Money, as well as bearer securities, cannot be demanded from a bona fide purchaser.

Expert comment:

The legislation allows that the owner may obtain the right to reclaim his property from a bona fide buyer in cases where it was lost by him or the person to whom the legal owner transferred it in possession, was stolen, or was otherwise removed from their possession against their will.

Comments to Art. 302 Civil Code of the Russian Federation

1. The text of the commented article limits the owner’s reclaiming of his property from someone else’s illegal possession. The introduction of such restrictions is associated with the need to ensure priority protection of the interests of another participant in trade turnover - a bona fide purchaser.

2. The law protects only the interests of a bona fide purchaser. The latter must prove that he did not know and could not know that the property was being acquired from a person who does not have the right to alienate it, and believed that he legally received the property into his own ownership. The presence of intent and even gross negligence in the actions of the acquirer excludes the possibility of protecting his interests.

3. If the acquirer is in good faith, then the owner has the right to reclaim property from him only when it has left the possession of the owner or the person to whom it was transferred into possession by the owner, against their will (lost, stolen, etc.). Moreover, the owner must prove these circumstances himself. The presence in the actions of the owner of the will to transfer property to another person excludes the possibility of reclaiming it from a bona fide purchaser (Bulletin of the Armed Forces of the Russian Federation. 1991. No. 2. P. 14; paragraph 19 of the Review).

The law makes two exceptions to this rule: a) if the property was acquired by a bona fide purchaser from a person who did not have the right to alienate it, free of charge, the owner can reclaim it under any circumstances (even if it left the owner’s possession by his will); b) money (Article 140 of the Civil Code) and bearer securities (Chapter 7 of the Civil Code), as the most negotiable objects of civil law, cannot be demanded from a bona fide purchaser under any circumstances.

4. In cases where the property cannot be claimed, it becomes the property of a bona fide purchaser. At the same time, the owner has the right to bring a claim for recovery of losses from the person to whom he transferred possession of his property.

5. The Civil Code, following the laws on property, abandoned the principle of unlimited (regardless of the good faith of the acquirer) vindication of state, cooperative and public property (Article 153 of the Civil Code of 1964). Such property can be claimed by the owner on a general basis.

6. The Civil Code also abandoned what was previously enshrined in Part 2 of Art. 152 of the Civil Code of 1964 prohibits the owner from reclaiming property sold in execution of a court decision. Now he can demand it in compliance with the rules of Art. Art. 301 and 302 Civil Code. However, if the person who acquired the property at an auction held by a bailiff is a bona fide purchaser, and the auction was not declared invalid, this person is recognized as the owner of the property. The previous owner no longer has the right to return it (clause 22 of the Review).