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of April 4, 2002 No. 25/1079

About agreement cancelation and eviction from the room

The Supreme Economic Court of Ukraine as a part of board of judges: chairman, judge Kuzmenko M. V.; Vasishchak I. M. judges., V.M.'s Bull-trout, having considered the writ of appeal of Meridian open joint stock company of S.P.Korolev on the resolution of the Kiev Economic Court of Appeal of December 5, 2001 on case N25/1079 on the claim of Meridian open joint stock company of S.P.Korolev to joint business - Station Wagon Leder Ukraine limited liability companies about agreement cancelation and eviction from the room.

The Meridian open joint stock company of S.P.Korolev as the legal successor of the affiliated motor transportation enterprise "Meridian-Trans", submitted to economic court of Kiev claim to joint business - the Station Wagon Leder Ukraine limited liability company about agreement cancelation about cooperation concluded between the parties.

(Judge O. Muravyev) the claim is satisfied with the decision of August 14, 2001: it is decided to break off the contract with eviction of the defendant from rooms which it occupied based on this agreement.

The decision is motivated by availability of debt on payment of means for use of rooms as the agreement cancelation bases.

Without agreeing with this decision, the joint predpriyatiyeobshchestvo with the limited liability "Leder Ukraine" in the petition for appeal asked it to cancel the Station wagon and to send case for new trial.

Of the Kiev Economic Court of Appeal (the judge S. Bondar, T. Baritskaya, B. Otryukh) the decision on case is cancelled by the resolution of December 5, 2001 and is refused the claim.

The Appeal Court came to conclusion that the controversial agreement is not cooperation agreement, and contains the provisions characteristic of obligations which arise when using of property and the cognizance item touches circumstances which concern legitimacy of charge by the claimant of the rent: by court it is determined that the outstanding amount at the lessee arose because of difference between the area which actually it uses - 1437,05 of sq.m and its size specified by the parties in the agreement - 1500 sq.m and as use of rooms is performed on squares, smaller, than it is specified in the agreement, the claimant has no bases to require to pay lease payments for the area which the defendant actually does not occupy.

The Meridian open joint stock company of S.P.Korolev considers that the resolution of appellate instance is subject to cassation revision because of violation of regulations of substantive and procedural law by court.

The complainant claims that the court violates Articles 4, 15-1, 26-9, of Chapter 19 of the Civil code of the Ukrainian SSR, the Law of Ukraine "About lease of the state-owned and utility property", Articles 42, of 43, part 1 of Article 101 of the Economic Procedure Code of Ukraine.

According to the applicant, the conclusion of court that the rent shall be paid by the defendant according to the actual area provided in lease is not based on general bases of emergence of the civil laws and obligations. On the contrary, owing to requirements of Article 269 of the Civil code of the Ukrainian SSR the basis for early agreement cancelation upon the demand of the lessor is, in particular, the fact of failure to carry out by the defendant during certain term of contractual commitments about introduction of payment.

In response on the writ of appeal joint business - the Station Wagon Leder Ukraine limited liability company claims that the conclusion of local economic court about illegal behavior of the defendant in the form of unilateral refusal of accomplishment of the obligation does not answer the actual facts of the case and failure to carry out by other partner of certain obligations under the agreement does not interfere with other party to refuse accomplishment of obligations.

The defendant denies availability of the fact of delay of payments as he ahead of schedule fulfilled obligations on lease payments for actually provided room.

From March 21 to April 4, 2002 according to the petition of the defendant's representative the break appeared in judicial session.

Having heard explanations of the representative of the claimant N. Shulyak, the defendant T. Serdegi and V. Zuzansky, having discussed arguments of the writ of appeal, having checked available materials regarding their legal evaluation by the Kiev Economic Court of Appeal, and having analyzed application of regulations of substantive and procedural law by court, the board of judges considers that the writ of appeal is subject to satisfaction for the following reasons.

In appeal production it is determined that this agreement regarding conditions on provision in use to the defendant of rooms contains lease agreement elements - the urgent paid use of the property necessary for the lessee for implementation of business and other activity based on the agreement.

In permission of the corresponding disputes the invariance of conditions of housekeeping (use of property) or conditions of object of lease prezumpirutsya, however in the course of accomplishment of agreement obligations between the parties there was dispute on floor area which were transferred to the defendant, and, as a result, dispute on the amount of payment for use of them and terms of its payment which in pre-judicial procedure for the party could not be solved.

From contents of articles 10 and 21 of the Law of Ukraine "About lease of the state-owned and utility property", Article 266 of the Civil code of the Ukrainian SSR follows that the price of the agreement is one of its essential conditions and its change after the conclusion of the agreement is possible only in cases and on conditions which are provided by the agreement, the law or the method determined by the legislation.

The controversial agreement (Article 4) cases in case of which approach the price adjustment one of participants without entering of corresponding changes into its conditions is possible are not provided. Therefore the parties by mutual consent shall make corresponding changes to it or be guided by Item 6.8 of article 6 of the agreement.

Apparently from case papers, numerous attempts of the defendant to change with the consent of other party of the term of the contract in this part remained ineffectual.

Under such circumstances the lessee according to the legislation is not deprived of the right to appeal to economic court, in particular, with the statement for reduction of hired payment or introduction of amendments to the agreement and disputes of this category shall decide in claim production.

In the presence in case papers of the copy of the action for declaration which the claimant submitted to economic court of Kiev (t. 1 and / with 102), there is no judgment which took legal effect which solves dispute on introduction of amendments to the agreement.


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