Although it may seem that the purchase price is the most important part of the purchase contract, in practice there may be cases in which it is not ideal for the parties to determine the purchase price at the time of conclusion of the contract or in the contract itself.
These are especially cases where the contract will be subsequently fully or partially available to the public, either in the Collection of Deeds of the Commercial Register in the case of the sale of a business share or in the Land Registry in the case of the sale of real estate. Although legal theory does not distinguish between these cases and applies the same provisions of the Civil Code to both of them, legal practice differs significantly in both cases.
While the previous Civil Code from 1964 considered the purchase price to be an essential element of a purchase contract and its absence or inaccurate definition could have caused the nullity of such a contract, the new Civil Code has diverted from this concept. Since the recodification of private law, the main principle is the contractual freedom of the parties, it is sufficient if the agreement of the parties implies a consideration, and the law even provides a solution in Section 2085 (2) for the case when the parties do not agree on any price in the contract.
However, this opinion is not accepted by the Land Registry, which rejects proposals for the entry of the ownership right into the Land Registry based on a purchase agreement without a purchase price clause. The conclusion of a separate agreement on the price, which would not be attached to the application for registration but would be referred to in the purchase contract itself, is not without legal risks in the case of a sale of real estate. In these cases, the Land Registry rejects proposals for transfer of ownership and this practice has also been confirmed by a court decision. The need to state the purchase price is implied by the very nature of the purchase contract. As the term suggests, unlike, for example, a donation, where money (hence the price) does not play a role, a contract of sale is an obligation by which the seller undertakes to hand over to the buyer the subject matter to be bought and to enable him to acquire ownership of it. The buyer then undertakes to take possession of the item and to pay the seller the purchase price. Thus, without the purchase price, the substance of the contract itself is not defined and the Land Registry will not accept it for that reason which also prevents the possibility of transferring ownership of the immovable property.
This view may seem at first glance surprising, but it has already been upheld by a number of higher court decisions and must therefore be considered binding.
On the other hand, in the case of a transfer of a company share, the court practice allows the purchase price not to be included directly in the share transfer agreement, but to be included in an annex to it, provided that such agreement is in writing. Here, the conclusion is that the share transfer agreement is submitted to the Registration Court only to prove the change of ownership of the share. On the basis of what legal act such change took place between the parties, whether they entered into a contract of sale or an innominate contract, is immaterial to the registry court.
In conclusion, it can be stated that, in view of the established decision-making practice of the courts, it is appropriate to recommend that the parties always negotiate the purchase price directly in the real estate property purchase contract or, in order to preserve the validity of the legal transaction, use a type of contract other than a purchase contract.
In the case of a share purchase, a separate price agreement can be concluded to avoid publication of the purchase price in the Deeds Collection of the Commercial Register, if applicable.
