Russia’s Supreme Court in the decision, in particular, explained the issues of application of the new provisions of the Civil Code of the Russian Federation (hereinafter – the Civil Code), which entered into force on June 1 last year.
The Supreme Court of the Russian Federation pointed out that the justification for the loss of profits can lead any evidence of the possibility of its extraction; a causal link must be proven with a reasonable degree of certainty, and clarified the rules and standards for the application of the provisions on force majeure and their influence on commitment.
The resolution of the Plenum explained the provisions of the new institute – compensation losses (the Russian equivalent of the English indemnity), set out in article 406.1 of the Civil Code.
Agreement of the parties of the obligation can be directly set the duty of one of them to compensate property losses other hand, arising in the event of certain circumstances, in any way related to the execution, amendment or termination of the obligation or its subject matter and the non-violation of the obligation.
In contrast to compensation for damages under the rules of Articles 15 and 393 of the Civil Code of the Russian Federation losses on the rules of Article 406.1 of the Civil Code of the Russian Federation is carried out regardless of whether the breach, and irrespective of a causal relationship between the behavior of the obliged party and subject to reimbursement of losses.
Under article 406.1 of the Civil Code, compensation for losses is permitted if it is proven that they have incurred or will inevitably be incurred in the future. At the same time the party requesting the payment of appropriate compensation, must prove a causal relationship between the occurrence of the relevant circumstances and its losses.
Parties have the right to establish, in particular, such a procedure for determining the amount of loss, in which one party reimburses the other all resulting from her loss, caused by the relevant circumstances, or part thereof.
Latest explanations of the Plenum of the Supreme Court with regard to liability for unfair bargaining enshrined in Art. 434.1 of the Civil Code.
The Supreme Court explained that the plaintiff has the burden of proving that, by entering into negotiations, the defendant acted in bad faith with the purpose of causing harm to the plaintiff, for example, trying to get commercial information from the plaintiff or impede the conclusion of the contract between the plaintiff and a third party.
In the case where the damage is caused when negotiating multiple counterparties together, they are responsible to the victim jointly.
The provisions of the resolution on astrente are important.
The term “astrent” in the decision is not in use, the Supreme Court of the Russian Federation introduced the term as “judicial penalty” and gives the following explanation.
On the basis of paragraph 1 of Article 308.3 of the Civil Code in order to debtor of motivation for the timely execution of the obligation in kind, including those involving abstinence debtor from doing certain actions, as well as to the execution of the judicial act, providing for elimination of violation of property rights, not connected with deprivation of possession (Article 304 of the Civil Code), the court may be awarded money in the event of default by the relevant court decision in favor of the claimant creditor (hereinafter – judicial penalty).
The payment of the judicial penalty does not entail the termination of the principal obligation does not relieve the debtor from performance of its in kind, as well as by the application of sanctions for its non-performance or improper performance (paragraph 2 of Article 308.3 of the Civil Code).
The amount of the judicial penalty is not considered when determining the amount of damages caused by failure to fulfill obligations in kind: such losses are recoverable in excess of judicial penalties (paragraph 1 of Article 330, Article 394 of the Civil Code).
Charge provided for in Article 395 of the Civil Code of interest on the judicial penalty is not permitted.
Resolution of the Plenum of the Supreme Court on March 24, 2016 № 7 “On application by the courts of certain provisions of the Russian Federation on liability for breach of the Civil Code,” is essential to the contract work and the resolution of disputes of the commitments already occupies a prominent place among the “desktop” judicial clarification from lawyers and other legal practitioners.