2 types of liability for breach of contractual obligations. Failure to fulfill obligations under the contract of the Civil Code of the Russian Federation

The Civil Code of the Russian Federation contains the main consequences in relation to violators of the contract.

1. If one party under the contract does not fulfill its obligations, fulfills them improperly or refuses to fulfill these obligations at all, it is obliged to compensate the other party for the losses caused by this.

This is a general rule of civil law, but along with it there are several special provisions that establish the consequences of non-performance or improper performance of obligations.

Special rules in case of delay in the performance of an obligation by the debtor. Delay in performance of an obligation is a special case of improper performance of an obligation. In accordance with this article, the debtor who has delayed performance shall be liable to the creditor for the losses caused by the delay and for the consequences of the impossibility of performance accidentally occurring during the delay. If, due to the debtor's delay, the performance has lost interest for the obligee, he may refuse to accept the performance and claim damages. The debtor is not considered to be in arrears until the obligation can be performed due to the obligee's delay.

The obligee is considered to be in arrears if he refused to accept the proper performance offered by the obligor or did not perform the actions envisaged by the law, other legal acts or the contract, or arising from the customs of business transactions or from the essence of the obligation, prior to which the obligor could not fulfill his obligation. The delay of the creditor is also a special case of improper performance of the contract.

The obligee's delay entitles the debtor to compensation for losses caused by the delay, unless the obligee proves that the delay occurred due to circumstances for which neither he himself, nor those persons who, by virtue of law, other legal acts or the obligee's order, were entrusted with the acceptance of performance, do not answer. In addition, under a monetary obligation, the debtor is not obliged to pay interest for the period of delay of the creditor.

The actions of the debtor's employees to fulfill his obligations are considered the actions of the debtor. For these actions, if they entailed non-fulfillment or improper fulfillment of an obligation, the debtor is responsible (the debtor's employees are understood to be citizens who have concluded only employment contracts with the debtor).

2. In case of non-fulfillment of the obligation to transfer an individually defined thing to the ownership or use of the other party, the latter has the right to demand that this thing be withdrawn from the debtor and transferred to itself.

This right lapses if the thing has already been transferred to a third party with the right of ownership, economic management or operational management. If the thing has not yet been transferred, the creditor in whose favor the obligation arose earlier, and if this cannot be established, the one who filed the claim earlier, shall have priority.

Instead of a demand to transfer to him a thing that is the subject of an obligation, the creditor has the right to demand compensation for losses.

3. If the debtor fails to fulfill the obligation to manufacture and transfer the thing into ownership, economic management or operational management, or transfer the thing for use to the creditor, or perform certain work for him or provide him with a service, the creditor has the right to entrust the fulfillment of the obligation to third parties within a reasonable time for a reasonable price, or perform it on their own, unless otherwise follows from the law, other legal acts, the contract or the nature of the obligation. In addition, the creditor has the right to demand compensation from the debtor for necessary expenses and other losses incurred.

2. The concept and types of civil liability

Civil liability should be understood as the unfavorable consequences established by law for the violator of an obligation, expressed in depriving him of certain civil rights or imposing on him certain obligations of a property nature.

Based on this definition of civil liability, two main forms can be distinguished:

• imposition of liability on a person who violated the contract of property obligation, for example, transfer of property, payment of money, etc.;
• deprivation of the person who violated the contract of his right.

Laying responsibility on a person who has violated a contract of property obligation stands guard over the interests of the state, citizens and legal entities and serves to ensure the stability of civil law relations. The essence of this form lies in the fact that an additional property burden is imposed on the violator of the contract in comparison with those that he bore in accordance with the contract. A typical manifestation of this form of liability is the recovery of damages (see below for damages).

The responsibility of the person who violated the contract does not consist in imposing on the violator an additional property obligation, but in depriving him of the right belonging to him. An example of such responsibility is the recovery of everything received under contracts that are contrary to the foundations of law and order or morality to the state's income.

Depending on the specific circumstances, such as the nature of the offense, the subject composition of the legal relationship, and others, liability under civil law may be different.

Civil law identifies the following forms of liability:

• contractual and non-contractual;
• shared and solidary;
• main and subsidiaries.

Contractual liability- the liability of the debtor to the creditor under the obligation arising from the contract in case of non-performance or improper performance of this obligation. Thus, contractual liability is characterized by the following main features:

• the parties are bound by certain obligations that have arisen on the basis of the agreement (for example, a loan, lease, etc.)
• the basis for the onset of contractual liability is the fact of non-fulfillment or improper fulfillment of this obligation by one of the parties. For example, delay in the delivery of goods, transfer of goods of inadequate quality, etc.

Extra-contractual liability occurs in connection with the commission of illegal actions by one person in relation to another person, as a result of which the latter suffered certain property damage. That is, with non-contractual liability, the parties are not bound by any contractual relationship.

Shared responsibility can occur only with a plurality of persons in the contract, i.e. when on one or another side of the contract there are several persons who bear certain obligations. Shared liability is understood as the liability that is assigned to two or more persons who are responsible to the creditor in equal shares, unless otherwise provided by law or contract. As a rule, the basis for the onset of shared liability is the non-fulfillment or improper fulfillment of the obligation fixed in the contract by the co-debtors.

Joint responsibility- this is the responsibility of two or more persons, each of which is responsible to the creditor in full. Upon the occurrence of joint and several liability, the creditor, at his choice, decides to what extent and from whom it is necessary to collect. When recovering from one co-debtor the amount of losses in full, the latter acquires the right to demand reimbursement of these expenses in a recourse order. Joint and several liability may be provided for both by contract and by law. For example, in the event that the separation balance sheet does not make it possible to determine the legal successor of the reorganized legal entity, the newly emerged legal entities shall be jointly and severally liable for the obligations of the reorganized legal entity to its creditors.

Primary Responsibility- this is the responsibility of the debtor as the subject of a contractual or non-contractual obligation. Subsidiary liability is otherwise called additional. By virtue of law or contract, it is assigned to other persons who are not debtors in an obligation. So, for example, participants in a full partnership bear subsidiary liability with their property for the obligations of the partnership. Measures of additional liability may be imposed only if there is primary liability and subject to the following conditions: subsidiary liability is assigned to persons who do not bear primary liability; the scope of additional liability may not exceed the scope of primary liability.

In accordance with the Civil Code of the Russian Federation, before filing claims against a person who, in accordance with the law, other legal acts or the terms of an obligation, is liable in addition to the liability of another person who is the main debtor (subsidiary liability), the creditor must file a claim against the main debtor.

If the principal debtor refused to satisfy the creditor's claim or if the creditor did not receive from him within a reasonable time a response to the claim, this claim may be brought against the person bearing subsidiary liability.

The creditor is not entitled to demand satisfaction of his claim against the principal debtor from the person bearing subsidiary liability if this claim can be satisfied by setting off a counter claim against the principal debtor or by indisputable collection of funds from the principal debtor.

The person bearing subsidiary liability must, before satisfying the claim presented to him by the creditor, notify the principal debtor about this, and if a claim is brought against such person, then involve the principal debtor in the case. Otherwise, the principal debtor has the right to raise against the recourse claim of the person liable in subsidiary, the objections that he had against the obligee.

3. Conditions for the onset of civil liability

Civil liability in accordance with the Civil Code of the Russian Federation occurs in the event of an offense expressed in non-performance or improper performance of an obligation, and if the debtor is at fault. The law or the contract may also provide for other grounds for civil liability of the debtor.

Wrongfulness. Not every failure to fulfill obligations can be considered an illegal act of the debtor. It is necessary that such an act at least violate the norms of civil law and the subjective rights of the creditor. Only in this case the act of the debtor will be considered unlawful.

Not only action can be illegal, but also inaction. Inaction can be recognized as unlawful only if, under the contract, the debtor was supposed to perform certain actions, but did not perform them, for example, the absence of the fact of the transfer of things under the contract of sale.

Debtor's fault. The current civil legislation does not contain a clear definition of guilt. At the same time, the Civil Code of the Russian Federation contains an indication that a person is found not guilty if, with the degree of care and discretion required of him by the nature of the obligation and the conditions of turnover, he took all measures for the proper fulfillment of the obligation. Therefore, the failure to take these measures means that the person acted guilty.

At intent the person is aware of the unlawfulness of his behavior, foresees the onset of harmful consequences and wishes or consciously allows the onset of these consequences. In case of negligence, a person realizes the unlawfulness of his behavior, foresees the possibility of adverse consequences, but carelessly expects that these consequences will not occur, or does not foresee such a possibility, although he should have and could have foreseen this. As a rule, the form of guilt does not affect the scope and severity of liability, however, in some cases, directly provided for in the law, the form of guilt acquires significance (for example, when a contract that is contrary to the foundations of law and order and morality is declared invalid).

It should be noted that a person who has not fulfilled or improperly fulfilled an obligation in the course of entrepreneurial activity shall be liable regardless of the presence or absence of his guilt in the committed offense. However, if it is proved that proper performance was impossible due to force majeure, i.e. extraordinary and unavoidable circumstances under the given conditions (force majeure circumstances), this person may be released from liability. Circumstances such as violation of their obligations by the debtor's counterparties, lack of goods necessary for performance on the market, lack of the necessary funds from the debtor and other similar circumstances are not considered force majeure. An agreement or law may provide for other grounds for the liability of a business entity for non-fulfillment or improper fulfillment of an obligation. For example, a contract may contain a condition according to which a business entity is liable for an offense committed by him only if there is fault.

The absence of guilt is proved by the person who violated the obligation.

In addition to the fault of the debtor, the current civil legislation also singles out the fault of the creditor. Failure to perform or improper performance of an obligation occurred through the fault of both parties, the court accordingly reduces the amount of the debtor's liability. The court also has the right to reduce the amount of the debtor's liability if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them. In other words, the presence of the fault of the creditor causes a decrease in the degree of guilt and, accordingly, a decrease in the liability of the debtor.

Losses. Losses are understood as expenses incurred by one of the parties to the contract, loss or damage to its property, as well as lost income that it would have received if the obligation had been performed by the other party. Thus, the category of losses consists of the following elements:

• loss of property, physical destruction of property or its withdrawal from economic circulation;
• damage to property, the receipt of defects by it, associated with the deterioration of its consumer qualities, appearance, decrease in cost.

If the property is damaged, the amount of the markdown or the cost of repairing the damage is determined. Such damage can be caused as a result of violations of the terms of the contract on packaging and packaging, breakdown of the supplied equipment, and also in the case when, for example, the lessee, using the leased property in an improper way, brings it into a condition that requires immediate repair;

• lender's expenses. The expenses of the injured party include the actual expenses incurred by it by the day the claim was made: expenses due to production downtime, to eliminate deficiencies in the products received (work performed), to pay sanctions (including compensation for losses), etc. Thus, in real damage includes those expenses that the person had to incur in the future to restore the violated right. The main thing is that the need for such expenses and the estimated amount are confirmed by appropriate evidence - a reasonable calculation, estimate (calculation) of costs for eliminating deficiencies in goods, works, services, etc.;
• income not received by the creditor (lost profit). In connection with the transition to a market economy, the creation of an alternative commercial sector, the number of claims for the recovery of lost profits has increased significantly.

As a general rule, a person whose right has been violated may demand full compensation for damages, unless the law or the contract provides for damages in a smaller amount.

For certain types of obligations and for obligations related to the implementation of a certain type of activity, the law may restrict the right to full compensation for losses. The recovery of damages in a smaller amount may be provided for by both the law and the contract, and the restriction of the right to full compensation for damages may take place only in cases provided for by law. Let's consider a case from practice.

Under the terms of the lease agreement, the lessor, in case of violation of contractual obligations, undertakes to compensate the tenant for the losses incurred, but within the annual amount of the rent. In fact, the amount of losses caused to the tenant turned out to be more than the annual amount of the rent, and the tenant demanded full compensation for losses in court. At the same time, the tenant believed that the terms of the agreement on limiting the amount of losses by the annual amount of the rent were invalid as they did not comply with the requirements of the current legislation.

Reducing damages and limiting liability (the right to full damages) are not the same thing.

Limitation of liability takes place only if, in relation to certain types of obligations, the law provides for the possibility of recovering only a certain type of loss, for example, only real damage, or only the value of the lost thing.

Reducing the amount of damages takes place if, according to the law, all types of damages can be recovered from the violator, but the amount of damages is limited to a certain amount.

Unearned income (lost profit) includes all income that the injured party would have received if the obligation had been fulfilled. An essential feature of this form of loss is the fact that the creditor did not receive those incomes that he could have received if the obligation was properly performed by the debtor.

When filing claims for the recovery of lost income, the plaintiff must prove that he could and should have received the indicated income, and only the breach of obligations by the defendant was the only reason that deprived him of the opportunity to make a profit, for example, from the sale of goods. However, making a profit from the proceeds from the sale of goods is possible only after its manufacture and delivery to the consumer, therefore, the plaintiff, along with the above, must prove that he could sell the goods or services and thereby receive a conditional profit.

In other words, plaintiffs need to prove that there are real profit opportunities. When proving the size of lost profits, the plaintiff's conjectural calculations, as well as any forms in the subjunctive mood (if only..., then I would...), are not accepted. In this case, arbitration courts require written evidence of the possibility of making a profit: contracts concluded with the plaintiff's counterparties, letters of guarantee from them with a proposal to conclude an appropriate contract or positive responses from counterparties to the plaintiff's proposal to conclude an agreement, protocols of intent, etc. But the parties in the contract can independently provide for the amount of damages that the guilty party will be obliged to compensate the other party in case of violation of contractual obligations.

In the event that the person who violated the contract received income as a result of this, the other party under the contract has the right to demand compensation, along with other losses, for lost profits in an amount not less than such income.

The amount of lost profits is determined by taking into account the reasonable costs that the creditor would have to incur in order to derive profit if the obligation were performed.

In particular, if the debtor failed to fulfill the obligation to supply raw materials or components, as a result of which the creditor produced and sold a smaller amount of products, then the amount of lost profits should be determined based on the planned selling price of the products minus the costs that the creditor would have incurred for production and sale. products - the cost of undelivered raw materials or components, transportation costs, containers and packaging, etc.

In other words, it is necessary to distinguish between the concepts of "revenue" and "income". Revenue is revenue minus costs. Lost profits are precisely income, although in practice, plaintiffs ask for the recovery of proceeds as lost profits.

As a rule, losses from the defendant by the decision of the arbitration court are recovered in cash, but if the defendant does not have money, the plaintiff has two options: to initiate a bankruptcy case or apply to the arbitration court with an application to change the method of execution of the decision arbitration court by foreclosing the defendant's property. The latter option seems to be the most preferable, since, compared to initiating a bankruptcy case, it allows solving the plaintiff's problems more quickly.

Losses cannot be recovered if the obligation was terminated due to debt forgiveness, impossibility of performance.

In accordance with the Civil Code of the Russian Federation, for the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or saving at the expense of another person, interest on the amount of these funds is payable. The amount of interest is determined by the discount rate of bank interest existing at the place of residence of the creditor, and if the creditor is a legal entity, at the place of its location on the date of fulfillment of the monetary obligation or its corresponding part.

Both the obligation as a whole (in the loan agreement) and the obligation of one of the parties to the obligation (payment for goods, works or services) can be monetary.

The consequences provided for by the Civil Code of the Russian Federation do not apply to obligations in which currency (money) plays the role of a commodity (currency exchange transactions).

The Civil Code of the Russian Federation establishes liability for the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or saving at the expense of another person.

The Civil Code of the Russian Federation provides for the consequences of non-fulfillment or delay in the fulfillment of a monetary obligation, by virtue of which the debtor is obliged to pay the money. The provisions of this article do not apply to the relations of the parties, if they are not related to the use of money as a means of payment, a means of repaying a monetary debt.

When recovering a debt in court, the court may satisfy the creditor's claim, based on the discount rate of bank interest on the day the claim is filed or on the day the decision is made. These rules apply unless a different amount of interest is established by law or by agreement.

When calculating annual interest payable at the refinancing rate of the Central Bank of the Russian Federation, the number of days in a year (month) is assumed to be 360 ​​and 30 days, respectively, unless otherwise established by agreement of the parties, rules binding on the parties, as well as business customs.

Interest is accrued until the actual fulfillment of the monetary obligation, determined on the basis of the conditions on the procedure for payments, the form of settlements and the provisions of the Civil Code of the Russian Federation on the place of fulfillment of the monetary obligation, unless otherwise provided by law or by agreement of the parties.

If the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him, he has the right to demand compensation from the debtor for losses in excess of this amount. Interest for the use of other people's funds shall be charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the calculation of interest by law, other legal act or agreement.

The law or agreement of the parties may provide for the obligation of the debtor to pay a penalty (penalties) in case of delay in the performance of a monetary obligation.

The creditor has the right to present a claim for the application of one of these measures, without proving the fact and amount of losses incurred by him in the event of non-fulfillment of a monetary obligation, unless otherwise expressly provided by law or the contract.

Causal relationship between wrongful behavior and losses. A causal relationship is an objective specific relationship between two or more phenomena, one of which (cause) causes another non-identical phenomenon (effect), where the cause always precedes the effect, and the effect, in turn, is the result of the cause.

To apply civil liability, it is necessary to establish not any causal relationship, but only one that specifically indicates that the losses were a direct consequence of an unlawful act (failure to perform or improper performance of obligations) of the party to the contract (debtor).

4. Pre-trial (claim) procedure for settling disputes

Until recently, a necessary condition for exercising the right of an entrepreneur to file a claim with an arbitration court was compliance with the claims procedure for settling disputes.

The dispute could be referred to the arbitration court only after the parties took measures to directly resolve the dispute in the prescribed manner (with the exception of the requirements of organizations and entrepreneurs to invalidate acts of state and other bodies, to appeal against the refusal to state registration of the organization, etc. ).

If a federal law or an agreement establishes a pre-trial procedure for their settlement for a certain category of disputes, the dispute may be referred to an arbitration court only after such procedure has been observed.

The Civil Code of the Russian Federation contains a provision according to which the requirement to change or terminate the contract can be filed with the court only after the other party refuses such an offer or does not receive a response within the prescribed period.

The pre-trial (claim) procedure for settling disputes is mandatory for the plaintiff only in cases provided for by federal law or an agreement. If it is provided for by regulations, rules and other by-laws, then its observance is not mandatory for the parties. In addition, if the pre-trial (claim) procedure is provided for by the contract, the latter must contain a clear record of the establishment of such a procedure.

The legislator makes an exception to the general rule on the application of the pre-trial (claim) dispute settlement procedure: third parties who make independent claims regarding the subject of the dispute are not subject to the obligation to comply with such a procedure even when it is provided for by federal law or an agreement for this category of disputes.

In case of non-compliance with the pre-trial (claim) procedure for resolving a dispute with the defendant, determined by law or contract, the claim is left without consideration.

Evidence of the plaintiff's compliance with the pre-trial procedure is a copy of the claim and a document confirming its direction to the defendant.

It is also necessary to pay attention to the new approach of the legislator to the issue of pre-trial dispute resolution, which does not depend on whether the possibility of compliance with it has been lost or not. Regardless of this, failure to comply with the pre-trial procedure for resolving a dispute with the defendant is the basis for leaving the claim without consideration.

The current legislation does not grant the creditor the right to write off in an indisputable manner the amount recognized by the debtor in the claim. In the event that the condition on the indisputable write-off of the recognized amount is absent in the contract and in the response to the claim, and the debtor has not transferred the recognized amount, the creditor has the right to apply to the arbitration court with a claim for the recovery of the debt from the debtor, despite the recognition of the claim.

5. Protection of the violated by the court

The most traditional form of restoring a violated or disputed right is the appeal of entrepreneurs to the court (arbitration or general) with a claim to protect their rights and legally protected interests. In this case, a lawsuit acts as a remedy, i.e. a claim addressed to the court for the administration of justice, on the one hand, and a substantive legal claim addressed to the defendant for the fulfillment of his obligation, on the other.

The Arbitration Court is a state body specially created to consider and resolve economic disputes between enterprises, institutions, organizations that are legal entities and citizens engaged in entrepreneurial activities without forming a legal entity and having the status of an entrepreneur.

As a general rule, an arbitration court considers economic disputes provided that they arise from the following relations:

• between organizations - legal entities and citizens-entrepreneurs;
• between organizations - legal entities and state or other bodies;
• between citizens-entrepreneurs and state or other bodies.

At the same time, it is the sphere of entrepreneurship that is one of the main grounds that makes it possible to distinguish between the competence of arbitration courts and courts of general jurisdiction and to determine the specialization of arbitration courts. One of the criteria for referring cases to the jurisdiction of the arbitration court is the nature of legal relations: the arbitration court has jurisdiction over economic disputes arising from civil, administrative and other relations (for example, land, tax, etc.), which are not covered by the actual civil and administrative spheres.

The legislator determines the subject composition of the participants in legal relations between which a dispute may arise, which is under the jurisdiction of the arbitration court. It includes, first of all, legal entities and citizens engaged in entrepreneurial activities without forming a legal entity and having the status of an individual entrepreneur acquired in the manner prescribed by law.

At the same time, it should be borne in mind that the implementation of entrepreneurial activities without the formation of a legal entity and state registration as an individual entrepreneur are mandatory conditions, in the presence of which a citizen is recognized as a participant in a dispute subordinate to the arbitration court. An entrepreneur is also recognized as the head of a peasant (farm) economy, carrying out activities without forming a legal entity, from the moment of state registration of this economy.

Particular importance is attached to the act of state registration as the basis for resolving the issue of jurisdiction over disputes involving citizens.

The moment of termination of the state registration is of fundamental importance. It should be emphasized that from the moment of termination of the state registration of a citizen as an individual entrepreneur (in particular, due to the expiration of the certificate, the annulment of state registration, etc.), cases involving these citizens are under the jurisdiction of courts of general jurisdiction, with the exception of cases when such cases were accepted for consideration by an arbitration court in compliance with the rules on jurisdiction before the occurrence of the above circumstances.

Since the arbitration court is a specialized court for resolving economic disputes related to entrepreneurial activity, it must be borne in mind that the status of a legal entity or a citizen-entrepreneur in itself does not give grounds for considering a dispute with their participation in an arbitration court. In particular, legal entities that are non-profit organizations, i.e. who do not have profit making as the main goal of their activities, can file a claim with an arbitration court only in cases where the dispute with their participation is of an economic nature and arose in connection with their entrepreneurial activities.

Thus, when deciding on the jurisdiction of cases to an arbitration court, it is necessary to have the two criteria mentioned above: the nature of the legal relationship and the subject composition of their participants.

Organizations that are not legal entities have the right to file claims with an arbitration court only in cases expressly provided for by law.

So, in practice, situations are not uncommon when a claim for the protection of rights and legally protected interests is filed not by the legal entity itself, but by its separate subdivision by virtue of a power of attorney issued to it. In this case, it should be borne in mind that the plaintiff in such cases is not a separate division, but a legal entity in whose interests it acts. A reorganized or newly created organization has the right to appeal to the arbitration court the decision of the registration authority to refuse registration or their evasion of registration.

Given that the legal capacity of a legal entity comes from the moment of its state registration, these organizations are not legal entities, but may apply to an arbitration court.

The same applies to citizens who do not yet have the status of an individual entrepreneur when they file a lawsuit to challenge the refusal of state registration.

In cases stipulated by law, state bodies, local self-government bodies and other bodies may apply to protect state and public interests. This right is not made dependent on the presence of the status of a legal entity in these bodies.

As a general rule, disputes between citizens-entrepreneurs, as well as between them and legal entities, are resolved by an arbitration court, with the exception of disputes not related to entrepreneurial activity.

If the case did not arise in connection with their entrepreneurial activities, it is subject to consideration in a court of general jurisdiction.

If at least one of the parties to the dispute is a person who does not have the status of an entrepreneur, this dispute is also subject to consideration not by an arbitration court, but by a court of general jurisdiction. In particular, a claim for the invalidation of a transaction for the sale of shares of a joint-stock company at an auction, in which an individual was a participant, must be considered by a court of general jurisdiction.

Moreover, even if a citizen has the status of an individual entrepreneur, acquired in the manner prescribed by law, but the dispute arose not in connection with his entrepreneurial activity, but out of marriage, family, housing and other civil legal relations, he is subordinate to the court of general jurisdiction.

From the moment of termination of the state registration of a citizen as an individual entrepreneur, cases related to his previous entrepreneurial activities are considered by courts of general jurisdiction, if these cases were not accepted for consideration by an arbitration court before the occurrence of these circumstances.

The court of general jurisdiction considers, in particular, those related to entrepreneurial activity:

• disputes about the restoration of rights on lost bearer securities or order securities;
• statements of citizens and organizations on unlawful actions and decisions of a government body and an official who believe that their rights and freedoms have been violated.

In addition, the court of general jurisdiction considers applications of persons who consider the performed notarial acts or the refusal to perform a notarial act to be incorrect.

It should be borne in mind that the court of general jurisdiction also has jurisdiction over disputes in which several claims are combined, some of which are subordinate to the court of general jurisdiction, others to the arbitration court, but the separation of these claims is impossible.

The courts of general jurisdiction also consider disputes involving foreign organizations and organizations with foreign investments in the manner prescribed by the civil procedural legislation of the Russian Federation.

At the same time, these disputes can also be referred to the arbitration court in the presence of an interstate agreement or agreement of the parties.

The inconsistency of the provisions on the jurisdiction of economic disputes between foreign and Russian entrepreneurs, contained in two normative acts of equal legal force, is obvious.

As a result, when choosing a court to resolve a dispute, the rule applies, according to which the plaintiff, regardless of whether he is a foreign or Russian entrepreneur, has the right, at his own discretion, to choose a court of arbitration or general jurisdiction to resolve the conflict. There can be no choice if the competent authority is directly determined by an international agreement or agreement of the parties. In this case, we are talking about the so-called prorogative agreement, i.e. the mutual wish of the parties to the contract to submit the dispute for resolution by a particular court until the court accepts it for its proceedings.

The agreement can be drawn up as an independent document, but more often it is included as a separate clause in the material content agreement being concluded (purchase and sale, credit, provision of services, etc.).

By their legal nature, prorogation agreements (i.e., agreements on the choice of court) are close to related clauses in international trade turnover on the withdrawal of future or already existing conflicts from the jurisdiction of state courts with their transfer for resolution through arbitration.

In the process of entrepreneurial activity in the territory of the Russian Federation, the following disputes between foreign investors and enterprises with foreign investments may arise:

• with state bodies of the Russian Federation, organizations - legal entities and citizens-entrepreneurs;
• between investors themselves and enterprises with foreign investments;
• between participants in an enterprise with foreign investment and the enterprise itself.

Thus, the court of general jurisdiction (exclusive jurisdiction) considers cases on the right to real estate located on the territory of the Russian Federation, cases on disputes arising from the contract of carriage, if the carriers are located on the territory of the Russian Federation.

The concept and principles of fulfillment of contractual obligations

Execution of the contract(contractual obligation) is the performance by the debtor (or another person on behalf of the debtor) in favor of the creditor of those actions that constitute the subject of the obligation (transfer of a thing into ownership or use, performance of work, provision of a service, etc.). It must be borne in mind that in mutual (bilaterally binding) agreements, each of the parties acts in relation to its counterparty both as a debtor and as a creditor. Therefore, the execution of such agreements consists in the performance of appropriate actions by both parties (counter provision).

Ways to ensure the fulfillment of contractual obligations

Enforcement of obligations is a traditional institution of civil law. Such methods of ensuring the fulfillment of obligations, such as a deposit, a penalty, a guarantee and a pledge, were known even to Roman law. The need to use them was explained by the fact that the creditor has a significant interest in being sure of the performance of obligations, and in securing compensation for possible losses, and in inducing the debtor to timely fulfill obligations under pain of unfavorable consequences for the debtor in in case of non-performance or improper performance.

In accordance with modern legislation, an obligation can be secured in one of the following ways: forfeit, guarantee, deposit, pledge, bank guarantee and retention of property.

forfeit(fine, penalties) - the amount of money specified by law or contract, which the debtor is obliged to pay to the creditor in the event of non-performance or improper performance of the obligation, in particular in the event of delay in performance.

Pledge. The essence of the pledge lies in the fact that the creditor under the obligation secured by the pledge (pledgee) has the right, in case the debtor fails to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially over other creditors of the person who owns this property (pledger), with exceptions established by law.

As a general rule, a necessary sign of the subject of a pledge should be its “marketability”: only that which the law does not prohibit to sell is accepted as a pledge. It is not allowed to use as a subject of pledge, firstly, things that are withdrawn from circulation, secondly, claims that are inextricably linked with the personality of creditors, and thirdly, certain types of property, the pledge of which is expressly prohibited by law.

The subject of pledge may be money and securities, but such pledge must involve the transfer of money as a deposit to the pledgee, a third party or a notary.

Guaranteeconsists in the fact that the guarantor undertakes to the creditor of another person to be responsible for the fulfillment by the latter of his obligation in full or in part. Thus, the guarantee increases the probability for the creditor to fulfill the obligation, since in case of its violation by the debtor, the creditor can present his claims to the guarantor.

A guarantee is an agreement for which a mandatory written form is established. The content of the obligation arising from the contract of guarantee is that the guarantor undertakes, if the debtor violates the main obligation secured by the guarantee, to be liable to the creditor along with the debtor for the main obligation. In this case, the amount of the guarantor's monetary obligation to the creditor is determined, as a general rule, by the amount of the debtor's liability for the corresponding violation of the main obligation. A different amount of the guarantor's monetary obligation may be determined by the surety agreement. In this case, they say that the guarantor has assumed the obligation to bear not full, but partial responsibility for the debtor.

bank guarantee is that at the request of another person (principal), a bank, other credit institution or insurance organization (guarantor) gives a written obligation to pay the principal's creditor (beneficiary) in accordance with the terms of the obligation given by the guarantor a sum of money upon presentation by the beneficiary of a written demand for its payment.

Here, only banks, other credit institutions or insurance organizations can act as a guarantor. The person who applies to the guarantor with a request to issue a bank guarantee (principal) is the debtor in the main obligation, the fulfillment of which is secured by a bank guarantee. And finally, the person entitled to make claims against the guarantor (the beneficiary) is the creditor in the main obligation.

A bank guarantee is a unilateral obligation put into writing, according to which the guarantor undertakes to pay a certain amount of money to the beneficiary-creditor under the obligation secured by the bank guarantee.

Retention.The essence of the retention lies in the fact that the creditor, who has the thing to be transferred to the debtor or the person indicated by him, is granted the right, in the event of the debtor's failure to fulfill the obligation to pay for this thing on time or reimburse the creditor for the costs and other losses associated with this thing, to keep it until the corresponding obligation is fulfilled by the debtor.

The peculiarity of such security for the performance of an obligation as retention is that the creditor is entitled to retain the thing of the debtor until the latter fulfills his obligations directly, i.e. in order to exercise this right, the creditor does not need to have the possibility of retaining the debtor's thing provided for by the contract. Any creditor under any contractual obligation has the right of retention (for example, a bailee awaiting payment for services related to the storage of a thing, a carrier who does not release the goods to the recipient until full payment for the carriage performed, etc.), except only in cases where the contract provided otherwise.

Deposit.A deposit is recognized as an amount issued by one of the contracting parties on account of payments due from it under the contract to the other party, as evidence of the conclusion of the contract and to ensure its execution..

The specific features of the deposit are as follows.

Firstly, only obligations arising from contracts can be secured by a deposit, therefore, it cannot be used to secure tort obligations, obligations arising from unjust enrichment, and some others.

Secondly, the deposit, being a way to secure a contractual obligation, simultaneously performs the role of proof of the conclusion of the contract. This means that if the parties do not dispute the fact of issuing (receiving) a deposit, and also if it is disputed, but this fact is confirmed by evidence, the contract is considered concluded.

Thirdly, only the fulfillment of monetary obligations can be secured by a deposit.

An agreement on a deposit, regardless of its amount, must be concluded in writing. The deposit can act as a way to secure contractual obligations, the parties to which are both citizens and legal entities and individual entrepreneurs.

Sanctions for breach of contract

Failure to perform or improper performance of a contractual obligation leads to a violation of the subjective rights of the creditor and entails the application of legal sanctions to the debtor, which are understood as measures of state coercion applied to a person who has violated the prescription of a legal norm.

Civil law sanctions, depending on the grounds for their application, may be contractual and non-contractual.

Contractual sanctions are applied for violation of the contract (contractual obligation), i.e. for its non-performance or improper performance, and non-contractual - for violation of the absolute rights enshrined in law.

Civil liability has a number of characteristic features that distinguish it from liability measures in other branches of law, and above all public law.

Forms of civil liability

The forms of civil liability are:

• damages
• recovery of a penalty
• collection of interest for the use of other people's money
• compensation for non-pecuniary damage

Compensation for damages. Losses means real damage(i.e. the costs that the creditor has made or will have to make to restore the violated right, the value of the property lost or the value by which the value of the damaged property has decreased) and lost profit(i.e. unearned income that the victim would have received under normal conditions of civil circulation if his right had not been violated).

Compensation for losses is a universal measure of civil liability and applies to any offense, regardless of whether it is provided for in a particular case by law or contract.

Forfeit. In the legislation, as varieties of penalties, fines and penalties. If in relation to fines it is difficult to single out any special features, then the specific signs of a penalty in the form of a penalty fee are obvious. They lie in the fact that the penalty is set in case of delay in the performance of the obligation, i.e. it is intended to ensure only the timely presentation of the performance of the obligation; the fine, as a rule, is determined as a percentage in relation to the amount of the obligation not fulfilled within the prescribed period; the penalty is a continuing penalty, which is collected for each subsequent period of delay in the unfulfilled obligation.

Depending on whether the penalty is established by law or by contract, there are contractual and legal damages.

negotiable the penalty is established by agreement of the parties. Its size, calculation procedure, conditions of application, etc. determined solely at their discretion. An agreement on a penalty must be made in writing, regardless of the form of the underlying obligation, which may also arise from an oral transaction. Failure to comply with the written form entails the invalidity of the agreement on the penalty.

Legal the penalty is subject to application regardless of whether the obligation to pay it is provided for by agreement of the parties. True, the fate and scope of the legal penalty largely depend on the legal norm in which it is contained. If a penalty is provided for by an imperative norm, it is subject to unconditional application. In cases where the provision on the penalty is contained in the dispositive norm, it is applied only insofar as the parties have not provided for a different amount of the penalty by their agreement.

Collection of interest for the use of other people's funds- a specific form of liability applicable for non-fulfillment or improper fulfillment of monetary obligations.

The amount of interest for the use of other people's funds is determined at the unified discount rate of the Central Bank of the Russian Federation (refinancing rate). Interest is accrued on the amount of funds payable to the creditor for the entire period of their misuse until the day of actual payment.

Compensation for moral damage is aimed at compensating the physical or moral suffering of the victim caused by the violation of his non-property (or property, if specified in the law) rights.

Moral damage is compensated in cash. The amount of compensation is determined by the court, taking into account the degree of guilt of the offender, the degree of physical and moral suffering of the victim, his individual characteristics.

Invalidity of transactions

Voidable and void transactions

The transaction is valid under the simultaneous presence of the following conditions:

b) each participant in the transaction has the legal capacity necessary for its completion;

c) the will of the participant in the transaction corresponds to his actual will;

d) the will is made in the form prescribed by law for this transaction.

Failure to comply with these conditions entails the invalidity of the transaction, unless otherwise provided by law. The invalidity of the transaction means that the action does not give rise to legal consequences, i.e. does not entail the emergence, change or termination of civil rights and obligations, except for those associated with its invalidity. An invalid transaction is an illegal legal action.

All invalid transactions are divided into two types - null and void.

void transaction invalid by virtue of the rule of law at the time of its commission. A void transaction is not enforceable. Any interested persons have the right to refer to the nullity of the transaction and demand in court the application of the consequences of its invalidity.

A voidable deal at the time of its conclusion, it gives rise to legal consequences inherent in a valid transaction, but they are of an unstable nature, since at the request of a circle of persons exhaustively defined in the law, such a transaction may be declared invalid by the court on the grounds established by law. In this case, the legal result of the transaction may be completely annulled, since the invalid transaction is invalid from the moment it was made, and the court decision on this issue will have retroactive effect, unless it follows from the content of the transaction that its effect can only be terminated for the future.

Thus, a voidable transaction is invalid due to its recognition as such by the court, and an insignificant one - due to the provisions of the law, i.e. regardless of judicial recognition. Procedurally, in relation to a voidable transaction, a claim is filed to recognize the transaction as invalid and apply the consequences of its invalidity, and in relation to a void transaction, to apply the consequences of the invalidity of a void transaction.

6. Separate types of contracts:

a) Purchase and sale agreement

under a contract of sale, one party (the seller) undertakes to transfer the thing (goods) into the ownership of the other party (the buyer), and the buyer undertakes to accept this goods and pay a certain amount of money (price) for it.

The contract of sale is:

• consensual, since it is considered concluded from the moment the parties reach an agreement, and not from the moment the goods or money are transferred (in retail trade, the contract is considered concluded from the moment of payment);
• mutual since both parties have both rights and obligations;
• compensated, since each of the parties receives a certain equivalent (goods - money) in return for what it has transferred.

Kinds : retail purchase and sale; supply; supply of goods for state needs; contracting agreement(agricultural products in unprocessed form); energy supply; purchase and sale of real estate and enterprises.

Subject is a commodity (thing), i.e. individually-defined thing, not withdrawn from circulation. The transferred item may or may not be the same as that of the seller at the time of the conclusion of the contract. This thing may not exist in nature at all (contracting). The subject may be securities and currency values ​​- their sale is subject to special regulation. The subject of sale and purchase may also be property rights: cession; sale of patent rights (full license agreement); sale of the enterprise.

An essential condition sales contract is item condition. This condition is agreed if the contract allows to determine item and quantity. In some varieties of sale and purchase, there may be other conditions.

Price(in general, for the sale and purchase is not an essential condition). If the price is not specified in the contract, then it is determined by the price formula, i.e. based on the price that, under comparable circumstances, is usually charged for similar goods, works or services (this rule does not apply to real estate).

Contract form depends on the subject of the contract, subject and price. Real estate transactions are subject to state registration.

Term indication is not an essential condition of the contract of sale (other than delivery).

Seller's Responsibilities:

1) transfer the goods;

2) the goods must be transferred in a certain quantity; proper quality; comply with the requirements of the contract; if there are no indications of quality in the contract, then it must correspond to the purposes of using this product, if the product is sold according to a sample, the quality must correspond to this sample, satisfy GOSTs;

3) information obligation of the seller: (information about the product; information about the seller).

Buyer Responsibilities:

1. accept the goods - take the actions necessary to ensure the transfer of the goods. If he does not accept, the seller may demand forcibly, or terminate for damages;

2. pay for the goods. Unless otherwise provided by the contract, the goods must be paid in full.

3. notify about the shortcomings of the goods, if any.

Ownership passes to the acquirer of the thing from the moment of its transfer. The transfer includes not only the actual delivery of possession of the thing, but also the delivery of it to the carrier or communication organization for forwarding, i.e. during the journey, the thing is already in the property of the acquirer. In cases where the alienation of property is subject to state registration, the acquirer's ownership right arises from the moment of such registration, unless otherwise provided by law.

Risk of accidental loss of goods. Unless otherwise provided by the contract of sale, the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer. Other rules may be stipulated by the contract.

Forms of civil liability: compensation for damages, recovery of a penalty, loss of a deposit. The legal nature of interest on a monetary obligation. Implementation of the principle of full compensation for losses.

Forms (measures) of civil law, and in particular contractual liability, are forms of expression of adverse consequences in the property sphere of the offender, which are the result of an offense committed by him.

The forms (measures) of civil liability undoubtedly include compensation for losses and collection (payment) of a penalty.

Damages

The general form of liability for contractual obligations is damages. According to Art. 393 of the Civil Code, the debtor is obliged to compensate the creditor for losses caused by non-performance or improper performance of the obligation.

The concept of “losses” must be distinguished from the categories of “harm” and “damage”, which are usually used, firstly, to designate one of the conditions of civil liability or one of the elements of a civil offense and, secondly, when analyzing legal relations related with tort liabilities.

Real damage is considered as one of the components of losses. As for the concept of "harm", the scope of its application is limited to the rules on tort obligations.

In Art. 15 of the Civil Code establishes the principle of full compensation for losses, which establishes that a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount. In this case, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (actual damage), as well as lost income that this person would have received under normal conditions of civil circulation, if his right had not been violated (lost profit).

The meaning of compensation for losses is that as a result the property of the creditor should be in the position in which it would have been if the debtor had performed the obligation properly. The implementation of this task, of course, requires compensation to the creditor of both the real damage caused by the violation of the obligation and the lost profits.

However, the compensation to the creditor must be adequate to put him in the right position. When indemnifying for losses, the creditor should not receive anything superfluous that goes beyond what is necessary, which makes it possible to restore his violated right. The issue should be resolved by detailed regulation of the procedure and methods for determining the amount of damages and proving them. These goals are subject to the norms of the Civil Code, which regulate the prices for goods, works and services used to calculate losses in relation to the place and time of fulfillment of the obligation (Article 393 of the Civil Code); the ratio of the amount of losses and penalties (Article 394 of the Civil Code); the ratio of the amount of losses and interest for the use of other people's money (Article 395 of the Civil Code).

Decree of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8 “On Certain Issues Related to the Application of Part One of the Civil Code” establishes that when resolving disputes related to compensation for losses caused to citizens and legal entities by violation of their rights, it must be borne in mind that real damage includes not only the expenses actually incurred by the person concerned, but also the expenses that this person will have to make in order to restore the violated right.

The need for such expenses and their estimated amount must be confirmed by a reasonable calculation, evidence, which can be presented as an estimate (calculation) of the costs of eliminating defects in goods, works, services; an agreement that determines the amount of liability for breach of obligations, etc.

As for the amount of lost profits (non-received income), in the said joint Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8, it was proposed to arbitration courts and courts of general jurisdiction to determine it taking into account the reasonable costs that the creditor would have to incur if the obligation were fulfilled .

As part of the real damage in accordance with the Civil Code, not only the expenses actually incurred by him, but also the expenses that he will have to make to restore the violated right, are subject to compensation to the creditor.

The Civil Code determined the minimum limit for the amount of lost profits in the case when the debtor who violated the obligation received income as a result. In such situations, the amount of lost profits cannot be less than the income received by the violator. This provision ensures the operation of the principle that no one can benefit from the violation of the right, and also significantly facilitates the process of proving the amount of damages to be compensated.

Recovery (payment) of a penalty

As noted, a penalty (fine, penalty) is one of the ways to secure obligations, the essence of which is to determine by law or contract the amount of money payable by the debtor to the creditor in case of non-performance or improper performance of the obligation.

However, in the Civil Code, the rules on the penalty are placed not only in Ch. 23 "Ensuring the fulfillment of obligations", but also in Ch. 25 "Responsibility for violation of obligations", since the application of a penalty is a form of civil liability for the following reasons.

Firstly, the penalty is collected by a court decision or voluntarily paid by the debtor only in case of non-fulfillment or improper fulfillment of the obligation, that is, in the presence of an offense.

Secondly, the essence of the penalty is the obligation of the debtor who violated the obligation to bear additional property losses.

Thirdly, the penalty, as well as losses, is subject to application only if there are conditions necessary for the onset of civil liability, which follows from Art. 330 of the Civil Code, according to which the creditor is not entitled to demand payment of a penalty if the debtor is not liable for non-performance or improper performance of the obligation.

Fourthly, the obligation of the debtor who violated the obligation to pay the penalty is ensured by state coercion, as evidenced by the inclusion of the recovery of the penalty in the number of methods of judicial protection of civil rights (Article 12 of the Civil Code).

According to Art. 394 of the Civil Code, in cases where a penalty is established by law or an agreement, in case of violation of the corresponding obligation and the application of liability in connection with this, the ratio of the penalty payable and compensation for losses should be determined according to the rules established by the Civil Code.

The essence of the general rule that determines the ratio of forfeit and damages is that losses are compensated for in the part not covered by the forfeit (offsetting forfeit).

A law or an agreement may determine a different ratio of penalties and losses, the possible options for which are as follows:

It may be possible to recover only a penalty, but not damages (the so-called exceptional penalty);
- losses can be recovered in full in excess of the penalty (the so-called penalty);
- at the choice of the creditor, either a penalty or damages (alternative penalty) may be collected.

Damages are recovered only in those cases when they are actually caused.

Losses are an indefinite value, they are revealed only after an offense, while a penalty is a precisely fixed value, predetermined and known to the participants in the obligation.

Losses are the objective result of an offense that cannot be differentiated depending on the value of the obligation, the nature of the offense and other significant points.

Interest on a monetary obligation

A special place in the Civil Code is occupied by Art. 395, devoted to the issues of liability for failure to fulfill a monetary obligation.

Determining the legal nature of interest on a monetary obligation under Art. 395 of the Civil Code, the following can be noted:

Firstly, the obligation of the debtor to pay interest for the use of other people's funds is established for all cases of their unlawful retention, evasion of their return, as well as unjustified receipt or saving at the expense of another person, including when monetary obligations arose from the contract.
Secondly, the amount of interest for the use of other people's funds is determined by the discount rate of bank interest, which exists at the place of residence (for citizens) or location (for legal entities) of the creditor. Currently, a single Central Bank refinancing rate is applied, which is 8.25% per annum, which is established by Bank of Russia Ordinance No. 2873-U “On the size of the refinancing rate of the Bank of Russia”.
Thirdly, interest for the use of other people's money in relation to losses is offset.
Fourthly, the period during which interest is accrued for the use of other people's funds ends on the day the amount of the debt is paid to the creditor, unless a shorter period is established by law, other legal act or agreement.

In the event that the said interest is collected by a court decision, the interest for the use of other people's funds must also be accrued for the period from the day the court issues the relevant decision to the day it is actually executed.

Terms of civil liability

The basis of civil liability (the only and general one) is the violation of subjective civil rights, both property and personal non-property, since civil liability is the responsibility of one participant in property turnover to another, the responsibility of the offender to the victim, its common goal is to restore the violated rights based on the principle of compliance of the amount of liability with the amount of harm or loss caused.

Violation of the right of the subject of civil legal relations entails the need to restore the violated right, including through the application of civil liability.

With regard to certain types of violated subjective civil rights, as well as to the subjects that have committed their violation, the legislator has formulated mandatory general requirements, the observance of which is necessary for the application of civil liability.

The conditions of civil liability are:

Illegality of violation of subjective civil rights;
- the presence of losses (harm);
- causal relationship between the violation of subjective civil rights and losses (harm);
- fault of the violator.

Illegality of behavior - violation of the relevant actions or omissions of the law. Wrongfulness is one of the necessary conditions for civil liability.

Causation is one of the conditions of liability, which consists in the fact that the negative consequences of a breach of contract were the result of the debtor's unlawful behavior.

Harm (losses) - are negative consequences caused by misconduct in the property area of ​​the victim.

Guilt of the violator - the mental attitude of the violator of the right to his actions and their consequences. There are the following forms of guilt: intent, simple negligence and gross negligence.

Deliberate guilt consists in intentional actions or inaction of the debtor with the aim of non-performance or improper performance of an obligation.

Negligence occurs when the debtor, in the performance of an obligation, does not show the degree of care that was required of him by the nature of the obligation and the conditions of turnover.

Gross negligence - the debtor's failure to show the minimum degree of care that could be expected from the average participant in civil transactions, the debtor's failure to take minimum measures in order to properly fulfill obligations.

Types of civil liability. Responsibility with multiple persons

Depending on the basis, a distinction is made between contractual and non-contractual liability. Contractual liability is a sanction for breach of a contractual obligation. Extra-contractual liability arises when a sanction is applied to an offender who is not in a contractual relationship with the victim.

Depending on the nature of the distribution of responsibility with a plurality of persons, share, joint and several and subsidiary liability are distinguished.

Shared liability arises when each of the debtors is liable in a share precisely defined in the law or in the contract.

Joint and several liability is applied in cases stipulated by law or contract. In case of joint and several liability, the creditor has the right to hold any of the debtors liable, both in full and in part.

Subsidiary liability occurs when two debtors participate in the obligation, one of which is the main one, and the other is additional (subsidiary). In this case, the subsidiary debtor shall be liable to the creditor in addition to the liability of the principal debtor.

From subsidiary liability it is necessary to distinguish the liability of the debtor for the actions of third parties, which takes place in cases where the fulfillment of the obligation is assigned by the debtor to a third party (Article 313 of the Civil Code). Unlike a subsidiary debtor, a third party is not connected with the creditor by a civil legal relationship. Therefore, the creditor can present his claim only to his debtor, but not to a third party who has not performed or improperly performed the obligation. In such cases, the debtor is liable to the creditor for non-performance or improper performance of the obligation by a third party (Article 403 of the Civil Code).

The penalty for failure to fulfill obligations under the contract is both a measure of responsibility for failure to fulfill the obligations assumed, and a way to ensure their fulfillment. In a general sense, this term refers to a certain sanction for violation of the established conditions of a business relationship, the cases of which are indicated in the agreement. Thus, by signing the contract, the parties agree to the possibility of its application.

Types of sanctions for violation of the terms of the contract

The parties are obliged to clearly fulfill their obligations under the contract, supply goods, perform work or provide services in accordance with the agreed conditions. If the object of the obligation under the contract is property, it must be transferred on time and in the appropriate condition. But situations where the obligation under the contract is not fulfilled are quite common in practice. In this case, the parties to the contract have the right to agree on measures of liability for violations of the obligation. The law establishes the following types of sanctions:

• compensation for losses caused by violation of obligations under the contract;
• forfeit (varieties of which are penalties and a fine);
• interest on borrowed money Art. 395 of the Civil Code of the Russian Federation.

Correlation with the concepts of "fine", "penalty" and "interest"

There is no clear distinction between these terms in the legislation. In practice, there is an opinion that fines and penalties are varieties of forfeit, and the fine is set in the form of an exact amount, in a specific amount, or as a percentage of the amount and is collected once. A penalty is a sanction for breach of contract, which is expressed as a percentage for each day of default, delay. Are the interest under the contract a penalty? These are different types of interim measures and measures of liability of the counterparty. If the agreement does not indicate the right of the creditor to recover a penalty, then, in addition to direct losses that must be proven and justified, he can only count on receiving interest for the use of other people's money in accordance with Art. 395 of the Civil Code of the Russian Federation.

Purpose and application

In accordance with Civil Code of the Russian Federation, the contractual penalty applies if such a condition is clearly stipulated, defined in the agreement. In other cases, the provisions of the law on the extent of liability of the parties are enforced.

It is important to remember that in certain cases the size of the sanction is fixed at the legislative level, and the parties cannot reduce it by their own decision, they can only increase it.

Such a rigid fixation is established by the legislator as a measure of responsibility of the contract participant in the event of:

• non-compliance with the deadline for fulfilling the requirements of the consumer by the seller - here the sanction established by the "Law on the Protection of Consumer Rights" is applied;
• non-observance by the insurer of the condition on the deadline for the return of the insurance premium or part thereof to the insured under the law on OSAGO (part 4 of article 16.1 of the Federal Law of April 25, 2002 No. 40-FZ).

Thus, if you briefly answer the question of what a contractual penalty is: it is an effective tool for exercising the rights of the parties to the contract, it serves as a guarantee of the fulfillment of obligations. In case of their violation, if such a sanction is provided for in the contract, the party does not need to prove its losses, it is enough to refer to a specific paragraph of the document. Therefore, a penalty is applied in practice very often.

Kinds

In addition to the above (fines or penalties), there are other types of this sanction, with the possibility or impossibility of recovering the losses of the transaction participant at the same time:

• offset, in this case the described measure of liability is applied along with the recovery of losses in the part not covered by it;
• exceptional, when only VAT is recovered, and losses are not subject to compensation. Such sanctions, by virtue of established practice, are applied when interacting with carriers, when providing transport services;
• penalty, when the recovery of losses is possible in full in excess of the VAT, this rule applies only if there is a direct indication in the agreement;
• alternative, when the creditor has the right to choose one of the above methods of protecting his rights. It also applies if there is a direct indication in the contract.

The parties determine the penalty in case of violation of obligations in the contract. But there are cases when the legislator regulates the size of the sanction in a certain area of ​​legal relations by specific rules.

An example of fixing the amount of the penalty for violation of obligations under the contract at the legislative level:

• violation by the seller of obligations not under the contract, but in accordance with the law on the protection of consumer rights, for example: failure to meet the deadlines for fulfilling the requirements of the consumer, failure to comply with the deadline for the transfer of prepaid goods, delay in the performance of work, delay in the fulfillment of certain consumer requirements (Articles 23-31 of the RFP);
• late payment on a bill of exchange (Article 3 of the Federal Law-48, which is called "On a promissory note and a bill of exchange");
• delay in the return of the insurance premium to the insured by the insured (Article 16.1 of the Federal Law "On OSAGO");
• delay in payments in fulfillment of obligations under the agreement on participation in shared construction (Article 5 of Federal Law-214).

Determination by the parties of the measure of responsibility for violation of obligations in the contract

When determining the terms of interaction, rights and obligations and measures of responsibility for non-fulfillment of obligations, the parties must first of all take into account the legislative norms of this type of legal relationship and transaction. If according to the Civil Code there are no strict rules regarding liability measures, and it is possible to clarify the norms of the law, the parties have the right to establish the amount and procedure for determining and collecting a penalty in case of non-performance or improper performance of the terms of the contract.

The wording on the amount of the sanction, if they allow characterizing it as an element of pricing (for example, “in case of a delay in the delivery of products for more than 15 days, the price of the product, originally set, increases by 3%”, etc.), may become the basis for charging VAT for the amount of the penalty.

An example of the wording of a penalty clause:

In case of failure to fulfill the obligation to pay for the goods within the period specified in clause (a clause of the agreement, contract) of this agreement, the Buyer is obliged to pay a penalty in the amount (a percentage of the amount or a fixed amount is indicated) of the amount of the debt formed for each day of delay, starting from the date on which the obligation under the contract was to be performed.

In case of violations when paying for services, the penalty under the service agreement can be any: set-off, penalty, exclusive, alternative, the legislator provides the participants in the transaction with complete freedom of choice. But it is necessary to take into account the rights of other participants, the restrictions that are possible when applying the law in practice, because the courts proceed in making decisions, among other things, from the principle of fairness and the correspondence of the measure of responsibility to the committed violation. Therefore, they often reduce the penalty.

Collection procedure

Fulfillment of the terms of interaction, compliance with the obligations assumed in accordance with the contract is the main obligation of the party to the contract, otherwise the established consequences are possible, including sanctions. The procedure for collecting a penalty is general, for this it is necessary:

1. Calculate the amount of the penalty.
2. Comply with the claim procedure for resolving the dispute (draw up a claim for recovery and send it to the debtor).
3. Apply to the court for the recovery of the debt.
4. Substantiate your claims and provide evidence for your arguments.

The settlement mechanism is determined in accordance with the law or the contract. The period for which the penalty is collected is also determined in accordance with the agreement. Usually it is collected for the entire period of non-performance or improper performance until the decision is made by the court. You cannot ask the court to decide on the recovery of a sanction on the day of actual execution (as is the case with interest under Article 394 of the Civil Code of the Russian Federation).

Currently, judicial practice proceeds from the fact that the one-time collection of a penalty and interest under Art. 395 for the use of other people's money is unacceptable. The fact is that the courts considered the financial burden on the defendant excessive, since when applying both of these measures of responsibility, it is not necessary to prove the amount and fact of losses.

Accrual period

The penalty begins to accrue from the moment the delay begins, that is, from the day after the day when the obligation under the contract was to be fulfilled. The moment of determining the end of the recovery period raises many questions, it all depends on the legal relations that have developed between the parties. As a general rule, the penalty is charged until the moment of full fulfillment of obligations under the contract by the person who violated the terms of the agreement, regardless of the moment the agreement is terminated.

If at the legislative level it is determined or agreed separately by the parties that the sanction is collected from the moment of termination of the agreement or contract, the penalty is collected up to this moment. The Plenum of the Supreme Court No. 7 dated March 24, 2016 connects the moment of termination of collection with the moment of termination of the main obligation under the contract.

If, for example, the parties have agreed that their contractual obligations cease entirely upon the expiration of the contract, the sanction will be calculated up to the date that the agreement expires. Judicial practice (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation in case No. 8171/13, which was adopted on November 12, 2013) indicates that the termination of obligations to return the penalty accrued under the contract is also possible through compensation, novation or debt forgiveness.

Determination of the size at the conclusion of the agreement

The law enforcer can reduce excessive penalties, but too low interest will not be in the interests of the counterparty. What percentage of the penalty for non-compliance with the terms of the contract to provide? It is better to focus on the commonly used liability measures in such transactions and on the average rates of short-term loans.

Calculation of the amount

The main rules for calculating the penalty for violation of obligations under the contract:

• compliance with the above rules for determining the calculation period (the day of fulfillment of obligations under the contract is included in the calculation period);
• when specifying in the agreement the maximum calculation period or the maximum amount of the sanction, these conditions must be observed;
• if there is a condition in the contract on performance in installments, each part is calculated separately.

How to make a claim and file it in court

Rules for filing a claim for damages:

• it is necessary to calculate the amount of the sanction;
• if there is a condition on a mandatory preliminary claim procedure, fulfill it;
• having received a refusal or having received no answer, apply to the court in compliance with the rules of jurisdiction and jurisdiction;
• to do this, it is necessary to form a statement of claim in accordance with the requirements of the relevant procedural normative documents, pay the state duty and collect the evidence base.

Decrease Rules

The court may reduce the amount of the penalty for failure to fulfill obligations under the contract on the basis of Art. 333 of the Civil Code of the Russian Federation - a petition is submitted for this. This is one of the legal ways to prevent abuse of the right in the free determination of the terms of the agreement.

Reduction is allowed only in exceptional cases under the following circumstances:

• the amount of the penalty is equal to or exceeds the amount of the principal debt;
• the percentage of the sanction clearly exceeds the market rate for short-term loans;
• there is reason to believe that the person concerned delayed applying to the court in order to increase the amount of liability.

Difficult financial situation, seizure of the debtor's property, non-payment of amounts under concluded agreements or from the budget are not grounds for reduction.

Limitation periods

The limitation period in this case is general, it is, in accordance with the Civil Code of the Russian Federation, 3 years. In addition, it should be noted that it may be interrupted by filing a lawsuit in court or by the obligated person taking actions to recognize the debt.

Arbitrage practice

When applying the norms when making decisions, the courts are guided not only by the legislation, but also by the established judicial practice, which is often summarized in the Resolutions of the Supreme Court of the Russian Federation (SC RF). If there is evidence, the recovery of a sanction is not difficult. Reducing the size of the sanction is a common practice, the courts often reduce it several times. But lately, debtors have been required to provide specific justifications for the reduction, worthy of attention and trustworthy arguments in favor of such a decision.

By entering into a contract, the parties assume obligations that must be fulfilled. But it happens that one of the parties to the agreement remains dissatisfied with the actions of the other party - in case of non-performance or improper performance of obligations under the contract. Let's discuss how the affected party to the transaction should act.

Basic concepts

Contractual relations and the law of obligations are regulated by the Civil Code of the Russian Federation (Part 1, Section 3). Chapter 21 defines the concept of obligation and why it arises: an obligation (according to a concluded contract) is an action or lack of action that one party (the debtor) is obliged to perform in favor of the second (the creditor).

Most often, the debtor undertakes:

• produce or supply any product;
• provide one-time or multiple services;
• pay the agreed amount;
• transfer a thing or property to a creditor, etc.

At the same time, the law and the agreement determine that it is necessary not only to fulfill the agreements, but their implementation must comply with a number of conditions. For example, the ordered products must be of the specified quality, delivered to the agreed place and within the specified time.

If what the debtor does does not meet all the specified requirements, this implies the need for compensation for the second party (Chapter 25 of the Civil Code of the Russian Federation).

Improper performance of contractual obligations

Chapter 23 of the Civil Code of the Russian Federation regulates the fulfillment of obligations assumed in the framework of contractual relations. In particular, no one can unilaterally withdraw from agreements.

It also takes into account:

• performance in parts - if this is not provided for in the agreement, the customer may not accept the performance of the service in parts;
• execution to the proper person - the goods / service / valuables should be transferred to the one specified in the agreement, or authorized by him;
• performance by a third party - usually this is allowed, unless otherwise indicated (for example, an agreement for a concert performance of an artist);
• terms - they are usually indicated in the agreement, but if there are no clear time frames, article 314 of the Civil Code of the Russian Federation highlights the concept of "within a reasonable time", that is, when it is demanded by the customer. If the obligations have not been fulfilled, they must be fulfilled within 7 days after the creditor's request.

The place of performance is regulated - unless otherwise specified, this is the place of residence of the individual creditor and the location of the legal entity creditor.

If the parties to the relationship cannot reach an agreement amicably and the case goes to court, the one who suffered the losses will have to prove that the agreements by the other party have not been fulfilled or have not been fulfilled properly. Therefore, the requirements for the quality of products / services, terms, place, etc. must be specified in the terms of the contract, not relying on a default understanding. A reliable option is to involve third-party specialistswho will take into account all the subtleties when drawing up an agreement.

Liability for improper performance of obligations under the contract

The law provides that a debtor who has not fulfilled its obligations must compensate the creditor for losses. You will also have to fulfill what is specified in the agreement, if possible. Losses (Article 15) are the costs of the injured party, as well as lost profits - i.e. the profit that would have been made if the agreements had been kept.

For example: if flour was not delivered to the bakery in the required time, as a result of which the production was idle for several hours, the cost of the order from the stores that did not receive the products will be considered a lost profit. The counterparty will also be obliged to reimburse the costs of the urgent purchase of flour from another supplier and still bring the ordered amount of flour.

Types of responsibility

Chapter 25 of part 1 of the Civil Code of the Russian Federation considers all aspects of liability for breach of obligations: for individuals and legal entities, for any type of relationship. In general, an entity that has not performed or performed its duties improperly is obliged to compensate for the losses. The law defines cases when the contract specifies a limitation of liability - then the guilty party compensates for the losses, but within this limitation.

Additionally, types of responsibility are distinguished when duties are performed not by one, but by several persons.

Solidary - lies with several participants, and each of them is obliged to perform the established functions equally.

Subsidiary - implies an additional party to the contract, who will have to be responsible for the performance if the debtor has not fulfilled the obligations. If the creditor does not receive what is due under the terms of the contract, he may file a claim with such a participant.

An example from judicial practice:

An individual entrepreneur filed a lawsuit against two municipal enterprises: utility networks and a management company for the recovery of 163 thousand rubles. damage and 392 thousand rubles. lost profit.

The plaintiff believed that through the fault of these two enterprises, the premises that the entrepreneur rented for his service center were flooded, and an independent examination confirmed this: the accident occurred due to blockage of the external sewage system (the area of ​​activity of public utilities), and due to a fracture of the internal pipe ( area of ​​activity of the management company). Therefore, both defendants were joint and several liability, which implies the same degree of their participation or the possibility of fulfilling the terms of the contract by one of them.

To compensate for lost profits, you will also have to confirm the possibility of making a profit - for example, provide information on income for a similar period of time.

The easiest and most convenient option for both participants is to resolve the issue at the stage of a claim, because litigation is always a waste of time, unnecessary hassle and additional costs. But in the event that an unscrupulous debtor refuses to comply with the terms of the agreement, an individual can apply to the world, and legal - to the arbitration court.

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