of March 24, 2016 No. 7
About application of some regulations of the Civil code of the Russian Federation by courts on responsibility for violation of obligations
For the purpose of ensuring unity of practice of application by courts of regulations of the Civil code of the Russian Federation on responsibility for violation of obligations the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:
1. The debtor shall pay to the creditor the damages caused by non-execution or improper execution of the obligation (Item 1 of Article 393 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation). If other is not provided by the law or the agreement, losses are subject to compensation in complete size: as a result of their compensation the creditor shall be put in position in which he would be if the obligation was fulfilled properly (Article 15, Item 2 of article 393 Civil Code of the Russian Federation).
If other is not established by the law, use by the creditor of different ways of protection of the violated rights provided by the law or the agreement does not deprive of it the right to demand from the debtor of indemnification, caused by non-execution or improper execution of the obligation (Item 1 of article 393 Civil Code of the Russian Federation).
The actual damage is understood as expenses which the creditor made or will shall make for recovery of the violated right, and also loss or damage of its property.
Lost profit is income which is not gained by the creditor which he would gain taking into account reasonable expenses on their obtaining in case of usual conditions of civil circulation if its right was not violated.
If person which violated the right received thereof the income, person whose right is violated can require compensation along with other losses of lost profit in the amount of not smaller, than such income (Item 2 of article 15 Civil Code of the Russian Federation).
3. In case of determination of the size of lost profit the measures and the preparations (item 4 of article 393 Civil Code of the Russian Federation) made for this purpose taken by the creditor for its obtaining are considered.
At the same time in reasons for the size of lost profit the creditor has the right to produce not only the evidence of taking measures and preparations for its obtaining, but also any other proofs of possibility of its extraction.
For example, if the customer made the claim to the contractor for indemnification, caused by improper execution of the works agreement on repair of shop building, referring to the fact that as a result of performance of works with shortcomings it could not perform the regular activities for retail sale of goods, then calculation of lost profit can be made on the basis of data on profit of the claimant for the same period of time before violation by the defendant of the obligation and/or after this violation was stopped.
The debtor is not deprived of the right to produce the evidence that the lost profit would not be received by the creditor.
4. According to Item 5 of article 393 Civil Code of the Russian Federation the court cannot refuse satisfaction of the requirement of the creditor about indemnification, caused by non-execution or improper execution of the obligation, only on the ground that the size of losses cannot be established with reasonable degree of reliability. In this case the size of subjects to indemnification, including lost profit, is determined by court taking into account all facts of the case proceeding from concepts of justice and proportionality of responsibility to the allowed violation of the obligation.
5. In sense of articles 15 and 393 Civil Codes of the Russian Federation, the creditor produces the evidence confirming availability at it of losses, and also proving with reasonable degree of reliability their size and causal relationship between non-execution or improper execution of the obligation by the debtor and the called losses. The debtor has the right to show objections concerning the size of the losses caused to the creditor and to produce the evidence that the creditor could reduce such losses, but did not take for this purpose reasonable measures (article 404 Civil Code of the Russian Federation).
In case of establishment of causal relationship between violation of the obligation and losses it is necessary to consider, in particular, to what effects in usual conditions of civil circulation could lead similar violation. If emergence of losses which compensation is required by the creditor is regular effect of the violation of the obligation allowed by the debtor, then availability of causal relationship between violation and the losses proved by the creditor is supposed.
The debtor confuting arguments of the creditor of rather causal relationship between the behavior and losses of the creditor is not deprived of opportunity to produce the evidence of existence of other origin of these losses.
The fault of the debtor in violation of the obligation is supposed, until proved otherwise. Lack of fault in non-execution or improper execution of the obligation is proved by the debtor (Item 2 of article 401 Civil Code of the Russian Federation).
If the debtor bears responsibility for violation of the obligation or for damnification irrespective of fault, then the burden of proof of the circumstances which are the basis for release from such responsibility, for example, of force majeure circumstances (Item 3 of article 401 Civil Code of the Russian Federation) is assigned to it.
6. By the general rule of the obligation party has the right to limit at discretion responsibility of the debtor (item 4 of article 421 Civil Code of the Russian Federation).
The conclusion of such agreement is not allowed and it is insignificant if breaks legislative prohibition (Item 2 of article 400 Civil Code of the Russian Federation) or contradicts being of legislative regulation of the corresponding obligation type (for example, terms of the contract of protection or the transportation agreement about the liability limit of the professional contractor of security services or carrier only cases of intentional non-execution or improper execution of the obligation are insignificant).
7. If in limits, stipulated in Item 4 articles 401 Civil Codes of the Russian Federation, in in advance signed agreement are specified the circumstances eliminating or limiting responsibility of the debtor for non-intentional fault of the obligation, then the burden of proof of their approach is assigned to it.
The agreement on elimination or the liability limit signed in advance does not exempt from liability for intentional violation of the obligation (item 4 of article 401 Civil Code of the Russian Federation). Lack of intention is proved by person which violated the obligation (Items 1 and 2 of article 401 Civil Code of the Russian Federation). For example, in reasons for lack of intention by the debtor which responsibility is eliminated or limited to the agreement of the parties the evidence that it shows at least the minimum degree of care and discretion in case of obligation fulfillment can be produced.
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