The plaintiff asserted that the defendant, having been familiar with the introductory and resolutive parts of the decision and knowing about the opening of the enforcement proceedings, had alienated the real estate objects. In such circumstances, as the plaintiff argued, these actions led to the actual impossibility of enforcing the court decision. Therefore, according to the plaintiff, the defendants' contract of purchase and sale of non-residential premises is fictitious because it was committed by the parties without the intention of creating legal consequences.

The Courts of First Instance and the Court of Appeal have completely satisfied the claims for invalidation of the contract.

Then the defendant appealed to the court of cassation, stating his complaint that the plaintiff is not a party to the contract of sale, the contract does not contain judgments about his rights and obligations, nor does it relate to the property of the plaintiff or his property or property rights - and therefore, here it is not about protecting the rights and interests of the claimant.

However, the Supreme Court upheld the decisions of the previous instance and rejected the appeal. And that's why.

As it was established by the courts, the case file does not contain any evidence of other defendant's actions to comply with the terms of the payment agreement. In his turn, the seller of the property also did not take any action to demand funds for the property he sold. In addition, the defendants did not record in the accounting business transaction for the sale of the specified real estate. That is, the defendants did not take the necessary actions aimed at achieving the legal consequences of the contract at issue.

In such circumstances, the disputed contract of sale can be qualified as a transaction that was not aimed at the actual occurrence of the legal consequences caused by it - that is, a fictitious transaction.

The Supreme Court reminded that, according to Part. 1, 2 Art. 234 of the Civil Code of Ukraine is a fictitious transaction that is committed without the intention of creating the legal consequences that are caused by this transaction. A fictitious agreement is characterized by the fact that the parties, when committing it, know that it will not be executed. In order to declare a transaction fictitious, courts must establish the intent of all parties to the transaction. In making a fictitious transaction, the parties have other purposes than those provided for in the transaction. Any transaction may be fictitious if it is not intended to establish the legal consequences that are prescribed by law for this type of transaction.

Therefore, the main features of a fictitious agreement are:

- misleading (before or at the time of the conclusion of the agreement) of another participant or a third party regarding the actual circumstances of the transaction or the actual intentions of the participants;

-  a deliberate intention to comply with the obligations of the contract;

-  concealing the true intentions of the participants in the transaction.

The circumstances established by the courts in this case testify to the intention of both parties to conceal the true intentions of the parties to the transaction, namely the removal of real estate from the property of the defendant without receiving payment for this property, in order to avoid execution of the court decision.

The full text of the decision of the SC in Case No. 903/439/18 can be found at the link.