Acsour experts regularly study court disputes and select the most interesting and significant cases. We present an expert review of 3 key cases of the arbitration courts of the districts, which may affect the already established practice.
1. Penalty for late return of the warranty deduction
What happened?
The subcontractor appealed to the court with a demand to recover from the general contractor the arrears of the guarantee deduction and the penalty for late payment of work. The first and appellate instances satisfied the claim in full.
However, the cassation did not agree with the decision to recover the penalty and sent the case for partial review.
Opinion of the courts
According to the position of the first two instances, the claim must be satisfied because
Cassation opinion
The cassation court disagreed with the opinion of the first and appellate instances and sent the case for partial review. As a result of the review, the cassation established:
2. Unilateral cancellation of the lease agreement
What happened?
The lease agreements for the warehouse and commercial premises contained the right of the lessor to unilaterally withdraw from the transaction — for example, if the premises were required for the company’s own needs. It was only possible to give the counterparty one day’s notice.
The landlord took advantage of this condition and cancelled the agreement. The conflict went to court: the first two instances supported the landlord’s position, considering the cancellation to be lawful. However, the cassation court disagreed and sent the case for review.
Opinion of the courts
The courts of the first two instances upheld the lessor’s position because
Opinion of the cassation
The cassation did not support the decision of the two first instances and explained that
a. grossly violate the balance of interests of the parties;
b. have unfavourable consequences for the economically weaker party;
c. have not been reasonably justified by the counterparty occupying a dominant position.
3. Recovery of damages for lost goods
What happened?
A supplier transferred a batch of goods to a marketplace warehouse — employees accepted the shipment, but not the entire delivery was displayed in the system. The company demanded the return of the missing items or compensation for their cost. The courts of the first instances sided with the plaintiff, recovering damages at the declared price.
However, the cassation court did not support the opinion of the courts: the calculations did not take into account that the goods were sold with discounts. The case was sent for reconsideration.
The opinion of the courts
The first and appellate instances recovered damages based on the price quoted by the plaintiff, and also clarified their position:
b. stimulating sales activities;
c. building consumer loyalty to a product group.
Opinion of the Court of Cassation
The Court of Cassation did not support the opinion of the courts of the first two instances and explained:
Acsour experts recommend:
1. Conduct a preliminary detailed analysis of the transaction.
2. Take into account all the peculiarities of the transaction and describe them in detail in the contract.
3. Take into account new court practice when signing contracts.
Acsour specialists will ensure the correct conclusion of the transaction and reduce the risk of negative consequences.
1. Penalty for late return of the warranty deduction
What happened?
The subcontractor appealed to the court with a demand to recover from the general contractor the arrears of the guarantee deduction and the penalty for late payment of work. The first and appellate instances satisfied the claim in full.
However, the cassation did not agree with the decision to recover the penalty and sent the case for partial review.
Opinion of the courts
According to the position of the first two instances, the claim must be satisfied because
- the return of the guarantee deduction qualifies as a payment obligation under the contractual relationship;
- the parties have voluntarily fixed the condition of collecting penalties without exceptions in respect of certain types of payments;
- there are legal grounds for satisfying the claim for the recovery of a penalty in connection with the delay in fulfilling the obligation.
Cassation opinion
The cassation court disagreed with the opinion of the first and appellate instances and sent the case for partial review. As a result of the review, the cassation established:
- guarantee retention and payment for work performed have different legal nature;
- since the dispute does not concern the general contractor’s breach of payment terms, there are no legal grounds for charging contractual penalties;
- in this case, only interest for the use of alienated funds under Article 395 of the Civil Code of the Russian Federation should have been applied;
- the contract stipulated that no interest would accrue for the period of withholding the guarantee amount. However, the court instances did not examine this condition, including the question of the admissibility of limiting the general contractor’s liability. This provision of the contract is not applicable in case of wilful default.
2. Unilateral cancellation of the lease agreement
What happened?
The lease agreements for the warehouse and commercial premises contained the right of the lessor to unilaterally withdraw from the transaction — for example, if the premises were required for the company’s own needs. It was only possible to give the counterparty one day’s notice.
The landlord took advantage of this condition and cancelled the agreement. The conflict went to court: the first two instances supported the landlord’s position, considering the cancellation to be lawful. However, the cassation court disagreed and sent the case for review.
Opinion of the courts
The courts of the first two instances upheld the lessor’s position because
- according to the concluded agreements, the parties agreed on the right of the lessor to unilaterally refuse to fulfil its obligations;
- the tenant was duly notified of the termination of the contractual relationship within the time period established by the agreement;
- the decision of the lessor to unilaterally withdraw from the agreement is lawful and in accordance with the provisions of the concluded agreements and the current legislation.
Opinion of the cassation
The cassation did not support the decision of the two first instances and explained that
- the courts failed to conduct a proper investigation of the circumstances relating to the defendant’s business necessity to terminate the lease agreements. In particular, the fact that the facilities had been transferred for use to another tenant, a competitor of the previous tenant, had not been taken into account;
- formal compliance with the requirements of the legislation does not exclude the possibility of abuse of right;
- the terms of the agreements were developed by the lessor, which makes its position dominant. In this case, the lessee could only accede to the proposed terms without the possibility of changing them;
- the court has the right not to apply the disputed contractual terms in cases where they:
a. grossly violate the balance of interests of the parties;
b. have unfavourable consequences for the economically weaker party;
c. have not been reasonably justified by the counterparty occupying a dominant position.
- the courts' conclusions are premature, as they do not take into account the totality of evidence indicating the lessor’s bad faith and contradictory behaviour.
3. Recovery of damages for lost goods
What happened?
A supplier transferred a batch of goods to a marketplace warehouse — employees accepted the shipment, but not the entire delivery was displayed in the system. The company demanded the return of the missing items or compensation for their cost. The courts of the first instances sided with the plaintiff, recovering damages at the declared price.
However, the cassation court did not support the opinion of the courts: the calculations did not take into account that the goods were sold with discounts. The case was sent for reconsideration.
The opinion of the courts
The first and appellate instances recovered damages based on the price quoted by the plaintiff, and also clarified their position:
- the full value of the unreturned goods, excluding the marketplace’s remuneration, shall be recovered. This would have been payable if the goods had actually been sold to end consumers at retail price;
- the official report with the retail price at which the warehouse accepted the supplier’s goods for storage should be used as the basis for calculating the amount to be recovered;
- discounts cannot be considered as a basis for determining the market value of goods because they are applied to:
b. stimulating sales activities;
c. building consumer loyalty to a product group.
Opinion of the Court of Cassation
The Court of Cassation did not support the opinion of the courts of the first two instances and explained:
- in damages, the seller must be put in the position he would have been in if his right had not been infringed (i.e. the goods were sold at a discount rather than at full price);
- the victim is not entitled to more than is necessary to protect his interest. He should not be unjustly enriched;
- the courts did not take into account the arguments that the amount of the claimed damages was 6 times higher than the actual sale price;
- it was not verified whether the prices in the plaintiff’s report corresponded to market prices, and no primary documents confirming the purchase or manufacture of goods by the supplier were presented.
Acsour experts recommend:
1. Conduct a preliminary detailed analysis of the transaction.
2. Take into account all the peculiarities of the transaction and describe them in detail in the contract.
3. Take into account new court practice when signing contracts.
Acsour specialists will ensure the correct conclusion of the transaction and reduce the risk of negative consequences.
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