Violation of the terms of the contract. Significant breach of contract in Russian civil law Over time, a significant breach occurs

Failure to fulfill obligations under a contract - the Civil Code of the Russian Federation provides for special legal consequences in connection with it. We will tell you in this article what the concept of obligation includes, what its types are, and also what the failure to fulfill obligations under the contract can lead to.

What is an obligation and its non-compliance

The concept of obligation is given in Art. 307 of the Civil Code of the Russian Federation and is considered as a situation in which a party, called the debtor, undertakes to the second party (creditor) to perform certain actions or, conversely, not to perform actions agreed upon in advance. The obligations of the debtor correspond to the right of the creditor to demand its fulfillment. The article under consideration does not provide an exhaustive list of situations in which obligations arise due to their diversity.

The Civil Code of the Russian Federation indicates the need for the parties to behave in good faith towards each other, provide the necessary assistance to fulfill the obligation, and also provide the necessary information (clause 3 of Article 307 of the Civil Code of the Russian Federation).

The essence of the obligation itself is:

  1. In establishing relationships between individuals.
  2. Obligation of one party to an emerging obligation to perform certain behavior under the threat of applying civil liability measures (Article 396 of the Civil Code of the Russian Federation), in other words, establishing liability for its failure to fulfill it.

Types of obligations

The main criterion for the occurrence of obligations is the basis for their occurrence, according to which it is customary to divide them into 2 large groups:

  1. Arising from the execution (non-execution) of contracts, in other words, contractual.
  2. Non-contractual (law enforcement).

Based on the grounds for the occurrence of obligations, there are:

  • arising from contracts and other transactions;
  • appeared as a result of unlawful actions;
  • arising as a result of the occurrence of legal facts.

Depending on the civil legal status of the parties to the occurrence of the obligation:

  • arising during their execution by parties to entrepreneurial activity;
  • arising with the participation of citizen-consumers.

According to the relationship between the rights and obligations that have arisen:

  • simple - those in which the parties are bound by only 1 obligation, for example when borrowing;
  • complex, that is, those in which there are more rights and responsibilities, for example, when delivering products.

By definition of execution:

  • alternative, that is, those in which the debtor must perform 1 or several actions (Article 308.1 of the Civil Code of the Russian Federation);
  • optional, that is, those in which a party can replace the main performance with another (Article 308.2 of the Civil Code of the Russian Federation).

By importance:

  • basic;
  • additional, that is, those that ensure the fulfillment of the main obligation.

Based on the subjects of fulfillment of the obligation, they are usually divided into the following groups and subgroups:

  1. With multiple persons:
    • equity (Article 321 of the Civil Code of the Russian Federation);
    • solidary (Article 322 of the Civil Code of the Russian Federation);
    • subsidiary (Article 399 of the Civil Code of the Russian Federation).
  2. With the participation of third parties:
    • recourse, that is, those in which responsibilities are transferred to another person (clause 2 of Article 325 of the Civil Code of the Russian Federation);
    • obligation in favor of a third party (Article 430 of the Civil Code of the Russian Federation);
    • duties performed by third parties (Article 308 of the Civil Code of the Russian Federation).
  3. When a change of persons occurs:
    • assignment (Article 382 of the Civil Code of the Russian Federation);
    • subrogation (Article 965 of the Civil Code of the Russian Federation);
    • transfer of debt (Article 391 of the Civil Code of the Russian Federation).

Fulfillment of obligations, consequences and liability in case of non-fulfillment

The proper fulfillment of obligations should be understood as legal actions performed by the parties. Proper fulfillment of an obligation in all cases terminates it (clause 1 of Article 408 of the Civil Code of the Russian Federation). By virtue of the provisions of Art. 311 of the Civil Code of the Russian Federation, a party has the right not to accept the fulfillment of an obligation in parts.

Based on Art. 309.2 of the Civil Code of the Russian Federation, all costs associated with the proper performance of duties are borne by the debtor party. This provision is confirmed by the resolution of the AS ZSO dated July 20, 2016 in case No. A27-9448/2015.

A unilateral refusal to fulfill obligations undertaken is not allowed (decision of the Sverdlovsk Region Arbitration Court dated October 20, 2016 in case No. A60-31242/2016), except for cases prescribed by law or other acts (Article 310 of the Civil Code of the Russian Federation).

Failure to fulfill obligations, including partial or incomplete fulfillment, is the basis for applying property liability measures to the guilty party. More details about this can be found in the resolution of the plenum of the RF Armed Forces dated November 22, 2016 No. 54.

Significant violations of the terms of the contract

A significant violation of the terms of the contract is usually understood as violations that may entail causing significant damage to the other party or even contribute to the deprivation of what it had the right to count on when concluding the contract (Clause 2 of Article 450 of the Civil Code of the Russian Federation).

The essential nature of the violation in this case does not lie in the amount of damage caused, but rather in the relationship between what the party could expect from the fulfillment of the obligation and what it lost as a result of its non-fulfillment.

In other words, when the courts consider the issue of the materiality of violations of the terms of the contract, materials will be examined that prove a significant difference between what the party expected when signing the contract and what was actually obtained (decision of the Arbitration Court of the Sverdlovsk Region dated September 8, 2016 in case No. A60-30641/2016).

IMPORTANT! Civil liability is entailed not only by significant violations, but also by any violations that cause loss or harm to the counterparty.

Types of liability for failure to fulfill obligations under the contract

Liability under the Civil Code of the Russian Federation is of a property nature. Its main distinguishing feature is the obligation of the party that violated the obligation or caused harm to pay certain amounts.

Liability for failure to comply with the terms of the contract may arise if:

  1. Illegality of actions.
  2. The parties are at fault.
  3. Losses suffered by one of the parties to the contract.
  4. An established causal relationship between the actions of the guilty party and the losses incurred by the other party.

As part of contractual liability, it is worth noting:

  • joint and several, when the right to choose from which of several debtors for one debt to collect this debt belongs to the creditor;
  • subsidiary, which implies the creditor’s right to appeal to the subsidiary debtor if it is impossible to collect the debt from the main one.

Liability (damages)

Ch. 25 of the Civil Code of the Russian Federation is devoted to liability for failure to fulfill obligations under a contract.

The universal measure of liability used in case of failure to fulfill the terms of the contract is compensation by the guilty party for losses incurred (Article 393 of the Civil Code of the Russian Federation).

The procedure for determining losses is regulated by Art. 15 Civil Code of the Russian Federation:

  1. The victim entitled to demand compensation for losses is the entity whose substantive right was violated.
  2. Losses are conditional expenses incurred by one of the parties to a contractual relationship, with the help of which a violated right was restored or certain obligations were fulfilled. Losses should also include the lost benefit, that is, the benefit that the party could have received in the normal performance of obligations, without violations.
  3. If the party that violated the obligations receives certain income, the party whose right was violated receives the right to claim lost profits. Moreover, the size of this benefit may be no less than the amount of income received. The terms of the contract or law may establish certain restrictions regarding the collection of lost profits.

Losses are a kind of maximum measure of liability for failure to comply with the terms of the contract under the Civil Code of the Russian Federation.

If a significant violation of the terms of the contract under the Civil Code of the Russian Federation entails the need to sign a similar contract, then the party whose right was violated by such non-fulfillment receives the right to demand from the debtor compensation for the difference between the price under the original contract and the one concluded subsequently (Article 393.1 of the Civil Code of the Russian Federation, Resolution of the plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7).

Other measures of responsibility

In addition to the right to claim damages, if violation of the terms of the contract of the Civil Code of the Russian Federation provides for other liability measures, in particular, such as:

  1. Penalty (Article 330 of the Civil Code of the Russian Federation) in other words, a fine (set in money) or a penalty (calculated as a percentage). It is subject to accrual if one of the parties violates the terms of the agreement reached. In this case, by default, losses can be claimed only in the part not covered by the penalty (Article 394 of the Civil Code of the Russian Federation).

    But the contract may provide for payment:

    • only penalties;
    • losses in excess of the amount of the penalty;
    • either penalties or losses.

    The presentation of a demand to pay a penalty to the party that violated the terms of the contract should not be accompanied by proof of the fact of causing losses (clause 1 of Article 330 of the Civil Code of the Russian Federation).

  2. Liability for failure to fulfill a monetary obligation (Article 395 of the Civil Code of the Russian Federation). This article determines the payment procedure and the amount of interest for late contractual payments. Its size is determined by the key rate of the Bank of Russia for settlement periods.

    If the injured party demands the recovery of the specified interest, but its losses are noticeably higher, it is also permissible to demand payment of damages, but only in the part not covered by the interest under Art. 395 of the Civil Code of the Russian Federation.

In addition to the above, there are some other features of interest calculation:

  • accrual of interest on interest is not permitted;
  • simultaneous accrual of penalties in accordance with the terms of the contract and interest is not permitted;
  • interest shall be calculated until the required amounts are paid.

However, a shorter period may be provided for by agreement of the parties.

Responsibility for failure to fulfill the terms of the contract is provided for by the current Civil Code of the Russian Federation and is expressed in the form of presenting claims to the guilty party for compensation of losses, payment of penalties (fines, penalties), as well as the calculation of interest in case of failure to fulfill a monetary obligation.

SIGNIFICANT VIOLATION OF THE AGREEMENT is one of the grounds for changing or terminating the contract unilaterally (as an exception to the general principle). Unlike the usual, only such a violation of the contract is considered significant, which entails causing damage to the non-operating party in a special amount (so that it is largely deprived of what it had the right to count on at the time of concluding the contract) - Art. 450 Civil Code of the Russian Federation. In general, when qualifying a violation as material, the nature of the contractual obligations is taken into account.

Large legal dictionary. - M.: Infra-M. A. Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukharev. 2003 .

See what “MASTERIAL VIOLATION OF CONTRACT” is in other dictionaries:

    MATERIAL BREACH OF CONTRACT Legal encyclopedia

    Material breach of contract- see Amendment and termination of the contract... Encyclopedia of Law

    Material breach of contract- - violation of the contract by one of the parties, which entails such damage for the other party that it is significantly deprived of what it had the right to count on when concluding the contract. Civil Code of the Russian Federation, art. 450, paragraph 2 ... Commercial power generation. Dictionary-reference book

    In civil law, one of the grounds for changing or terminating a contract at the request of one of the parties (as an exception to the general principle of the inadmissibility of unilateral refusal to perform a contract and its unilateral change). IN… … Encyclopedic Dictionary of Economics and Law

    fundamental breach of contract- one of the grounds to change or terminate the contract unilaterally (as an exception to the general principle). Unlike the usual, only such a violation of the contract is considered significant, which entails causing damage to the non-defaulting party in... ... Large legal dictionary

    Material breach of contract- A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is largely deprived of what it had the right to count on when concluding the contract...

Amendments to the Civil Code of the Russian Federation in the field of obligations law, which entered into force on June 1, 2015, also changed the provisions on liability for failure to fulfill obligations, for example, regarding the calculation of interest, the procedure for compensation of losses, etc. (Federal Law of March 8, 2015 . No. 42-FZ " "; hereinafter referred to as Law No. 42-FZ). In addition, a number of new rules have appeared in the code: on liability for unfair negotiations, the possibility of compensation for losses not related to the violation of an obligation, astrente, etc. Explanations of these provisions occupy a large part of the recently adopted resolution of the Plenum of the Armed Forces of the Russian Federation on the application of the provisions of the Civil Code of the Russian Federation on liability for violation of obligations (; hereinafter referred to as the Resolution).

MATERIALS ON THE TOPIC

For more information on how the rules on obligations have changed since June 1, 2015, read the material: " "

At the same time, the Resolution also clarifies the norms that were in force before the entry into force. In many ways, these explanations are based on explanations given earlier in:

  • Resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8 "";
  • Resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14 "";
  • Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 22, 2011 No. 81 "";
  • Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 4, 2014 No. 22 "".

Let's consider the most important provisions of the Resolution.

General provisions on liability and damages

The Supreme Court of the Russian Federation indicated that when filing a claim for compensation for losses, the creditor must not only confirm the existence of losses and determine their amount with a reasonable degree of certainty (if such determination is impossible, the amount of losses, we recall, is established by the court), but also prove the causal connection between the failure to fulfill or improper fulfillment of obligations and losses (). In this case, a debtor who does not recognize a causal connection between his behavior and the creditor’s losses may present evidence of the existence of another reason for their occurrence. In addition, the debtor has the right to object to the amount of damages and present evidence that the creditor did not take reasonable measures to reduce them.

Important clarifications were given by the Court regarding force majeure circumstances. As a general rule, the debtor is released from liability if he proves that he could not fulfill the obligation due to such circumstances (). The court clarified that their occurrence in itself does not terminate the debtor’s obligation if it can be fulfilled when these circumstances no longer exist. In this case, the debtor is obliged to inform the creditor about their occurrence and take all reasonable measures to reduce the damage that will be caused to the creditor in this regard ().

Compensation for losses upon termination of the contract

In the event of early termination of a contract due to its non-fulfillment or improper performance by the debtor and the creditor enters into a similar new contract, the latter has the right to compensation for losses in the form of the difference between the prices for comparable goods, works or services established in these two contracts. Also, the difference in prices is reimbursed to the creditor even when he did not enter into a new contract, but the current price for comparable goods, works or services is known ().

The RF Supreme Court clarified that not one, but several transactions can be concluded in exchange for a terminated agreement. It is assumed that the creditor, when concluding a replacement transaction, acts in good faith and reasonably. However, the debtor can prove the opposite - that when concluding a new agreement, the creditor intentionally or negligently contributed to an increase in the amount of losses or did not take measures to reduce them. For example, you can provide evidence that the price of the replacement transaction is much higher than the current price for a comparable product, work or service at the time the transaction was concluded ().

Compensation for losses

Counterparties have the right to agree that one of them will have to compensate the other for property losses that may arise in the event of the occurrence of certain circumstances (for example, when claims are made against a party by third parties or authorities) that are not related to the violation of an obligation by the party (). Moreover, they may provide for the need to compensate for both the entire amount of losses and part of them. The RF Supreme Court emphasized that such losses are subject to compensation if it is proven that they have already been incurred or will inevitably be incurred in the future. The burden of proving the existence of a causal relationship between the occurrence of a specific circumstance and losses lies with the party demanding payment of appropriate compensation (). Moreover, if this party contributed in bad faith to the occurrence of a circumstance that is the basis for payment of compensation, such a circumstance is considered not to have occurred (,).

Find out how to confirm the fact that the creditor has accepted the fulfillment of an obligation from the material: "Acceptance of fulfillment of an obligation. Drawing up documents confirming acceptance of fulfillment" Encyclopedia of Solutions Internet version of the GARANT system. Get free
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The court emphasized that the agreement to compensate for losses must be explicit and unambiguous. If it is not clear from the concluded agreement what it provides for: the party’s obligation to compensate for losses or the conditions of liability for failure to fulfill an obligation, will not apply ().

As a general rule, losses are compensated regardless of whether the contract in connection with which the agreement on their compensation was concluded was declared unconcluded or invalid. The Supreme Court of the Russian Federation noted that this rule also applies to cases where an agreement on compensation for losses is contained as a condition in such an agreement (). At the same time, the agreement itself - either separately or included in the text of the contract as a condition - may be declared invalid, in particular under the specified circumstances.

An interesting clarification concerns the situation when the losses arose due to the unlawful actions of a third party, and were compensated by the party. As a result of this, the latter receives from the other party a claim to a third party for damages (). Since an agreement on compensation for losses does not create obligations for persons who are not parties to it, if the amount of losses compensated by a party to the other party exceeds the amount of losses to be compensated by a third party (,), the difference cannot be recovered from a third party, the Court stated ( ).

Responsibility for unfair negotiations

Citizens and legal entities are free to negotiate an agreement and are not responsible for the fact that an agreement is not reached if they act in good faith (). The party that conducts pre-contractual negotiations in bad faith or interrupts pre-contractual negotiations must compensate the losses caused to the other party: the costs of negotiations and losses due to the loss of the opportunity to conclude a contract with a third party. The RF Supreme Court emphasized that the burden of proving the defendant’s bad faith, for example the fact that the latter, when entering into negotiations, intended to obtain commercial information from the plaintiff or to prevent the conclusion of an agreement between the plaintiff and a third party, lies with the plaintiff. Exceptions include such actions as providing the other party with incomplete or unreliable information and suddenly and unjustifiably ending negotiations when the other party could not have expected this, since they are initially assumed to be in bad faith (). In these cases, the defendant must prove that he acted in good faith, the Supreme Court of the Russian Federation indicated ().

Liability for failure to fulfill an obligation in kind

If the debtor fails to fulfill the obligation, the creditor has the right to file a claim in court for the fulfillment of the obligation in kind, unless otherwise provided by law or contract and does not follow from the essence of the obligation (,). The Supreme Court of the Russian Federation noted that the court cannot refuse to satisfy such a claim if proper protection of the plaintiff’s violated right can be ensured only by fulfilling the obligation in kind: by providing information available only to the defendant, by preparing documents the preparation of which is solely authorized by the defendant, etc. ( ).

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At the same time, when considering each such claim, the court must determine whether fulfillment of the obligation in kind is objectively possible. It is impossible, for example, in the event of the destruction of an individually defined thing that the debtor was supposed to transfer to the creditor, or in the event of the adoption of a normative act that would contradict the fulfillment of the obligation. In addition, it is impossible to demand fulfillment in kind of an obligation related to the personality of the debtor if it leads to a violation of the principle of respect for the honor and dignity of the individual, the Court emphasized ().

When satisfying the creditor's claim to compel the performance of an obligation in kind, the court is obliged to set a period during which the relevant decision must be executed, taking into account the debtor's ability to perform, the degree of complexity of execution and other circumstances that affect this period. Also, the court has the right, at the request of the creditor, to award in his favor a judicial penalty (asrent) - a certain amount of money in case of non-execution of a judicial act (). It must be remembered that astrent is awarded only in case of non-fulfillment of non-monetary requirements. In addition, it cannot be established in disputes of an administrative nature, labor, pension and family disputes arising from personal non-property relations of family members, as well as in disputes related to social support, the Supreme Court of the Russian Federation clarified ().

The amount of the judicial penalty or the procedure for determining it is established by the court in each specific case, and must be such that it is more profitable for the debtor to fulfill the obligation than to evade its fulfillment. A court decision regarding the collection of a penalty is subject to forced execution only after the expiration of the period established for the fulfillment of the obligation in kind, therefore, a separate writ of execution is issued for its collection, the Supreme Court of the Russian Federation indicated (). Moreover, the fact of non-fulfillment or improper execution of a court decision to compel the fulfillment of an obligation in kind can only be established by a bailiff, and not, for example, by a credit institution.

If the defendant cannot execute the specified judicial act due to objective reasons, he has the right to petition for a postponement or installment plan for its execution (,). If this requirement is satisfied, the court must determine the period during which the judicial penalty is not accrued (it begins from the moment the decision is made to defer or installment execution). If a circumstance due to which the obligation cannot be fulfilled, for example, the destruction of an individually defined thing, arose after the award of the astrent, it is not subject to recovery from the moment this circumstance arose, the Court explained (). However, for the period preceding its occurrence, the penalty is collected.

Liability for failure to fulfill a monetary obligation

From June 1, 2015, the amount of interest for unlawful withholding of someone else’s money, evasion of their return or other delay in their payment () is determined as a general rule not by the refinancing rate, as was previously, but by the one published by the Bank of Russia for the federal district in whose territory is the place of residence of the creditor or the location of the creditor - a legal entity, and took place during the relevant period. The Supreme Court of the Russian Federation clarified that the sources of information on the relevant rates, including on deposits in foreign currency, are the official website of the Bank of Russia and the official publication "Bulletin of the Bank of Russia". If average rates for a particular period are not published, interest is calculated based on the latest published rate for each period of arrears. If such information is not available, you can use a certificate from one of the leading banks at the location of the lender about the average rate it applies on short-term deposits of individuals (). When calculating interest payable to a creditor whose place of residence or location is outside the Russian Federation, the rates published for the federal district at the location of the court considering the dispute are used, the RF Supreme Court indicated.

The amount of interest to be collected for the use of someone else's money is determined on the day the relevant court decision is made. However, the operative part of the decision may indicate that interest is collected until the actual fulfillment of the obligation, if required by the creditor. In this case, the day of payment of the debt is included in the interest calculation period, noted the RF Armed Forces (). Interest accrued after the decision is made is calculated by bailiffs or bodies, organizations or citizens executing the judicial act, at the average bank interest rates on deposits of individuals in the corresponding periods after the decision is made. Similar explanations were given by the Court regarding the calculation of penalties for non-fulfillment or improper fulfillment of obligations (;), which will be discussed in more detail below.

The Supreme Court of the Russian Federation recalled that the Civil Code of the Russian Federation now provides for the possibility of accruing so-called legal interest - interest on the amount of debt for the period of use of funds (). They do not represent a sanction for failure to fulfill a monetary obligation, but a payment for the lawful use of other people's funds. Therefore, courts considering disputes over the collection of interest must determine what interest the plaintiff requires: by or by. At the same time, the accrual of interest as a measure of liability in case of delay in performance does not affect the accrual of interest on, the Court emphasized ().

Collection of penalties

In the clarifications regarding penalties, special attention is paid to the issue of reducing the penalty in court if it is clearly disproportionate to the consequences of breach of obligation (). It is important to remember that the penalty for persons engaged in entrepreneurial activities cannot be reduced on the court’s own initiative - to reduce it, a corresponding application from the debtor is necessary. Moreover, we are talking not only about commercial organizations and individual entrepreneurs, but also about non-profit organizations that carry out income-generating activities, the RF Armed Forces noted. In addition, in order to reduce the penalty established by the contract to be paid by the entrepreneur, it is necessary to prove that the collection of exactly this amount may lead to the creditor receiving an unjustified benefit.

The validity of the amount of the penalty can be confirmed, for example, by data on the average fee for short-term loans issued to entrepreneurs to replenish working capital or fees for short-term loans issued to citizens at the location of the creditor during the period of violation of the obligation and inflation indicators for the corresponding period ().

The Supreme Court of the Russian Federation clarified that an application to reduce the penalty can be made exclusively when considering the case by the court of first instance or the court of appeal, if it proceeded to consider the case according to the rules of proceedings in the court of first instance (,). If the penalty can be reduced at the initiative of the court, then the issue of its reduction can be decided in the appellate instance without any restrictions (). The cassation court has the right to cancel a judicial act in the part relating to the reduction of the penalty if it establishes that it was adopted in violation of substantive law, the Supreme Court of the Russian Federation emphasized. Such violations are, in particular, reducing the penalty in the absence of a corresponding application from the debtor-entrepreneur, as well as establishing the amount of the reduced penalty for failure to fulfill a monetary obligation below the limit provided for, that is.

If the obligation was not fulfilled or was performed improperly due to the fault of both parties or the creditor contributed to an increase in the amount of the penalty, the court may reduce the amount of liability of the debtor according to the rules established. However, this does not exclude the possibility of reducing the penalty in the future, the Court noted ().

It should be noted that the legal community had ambivalent reactions to the clarifications in the Resolution. “In general, one cannot but be pleased with the fairly quick response of the highest court to the legislator’s innovations,” notes, for example, a partner of the Moscow Bar Association “Barshchevsky and Partners” Anastasia Rastorgueva. – It is important that the RF Supreme Court drew attention to a number of controversial issues on which directly opposite conclusions could be found in court decisions. This, of course, is the ratio and , as well as the question of whether the occurrence of force majeure circumstances terminates the debtor’s obligation if performance remains possible after they have ceased." However, a number of experts consider the adoption of the Resolution premature. "I have never seen a great need." anticipatory" interpretation of the rules of law on the part of the highest court. Innovations should be tested locally, experience and typical mistakes should be summarized, and only then conclusions should be drawn,” the lawyer is confident Alexey Gordeychik.

In conclusion, the Supreme Court of the Russian Federation recalled that the provisions of the Civil Code of the Russian Federation as amended do not apply to the rights and obligations that arose from agreements concluded before June 1, 2015. Therefore, when considering disputes related to such contracts, courts must be guided by the previously valid edition of the code, taking into account the established practice of its application (). However, when calculating interest for late fulfillment of a monetary obligation arising from an agreement concluded before the entry into force of the agreement, in periods after June 1, 2015, a new edition is applied, that is, bank interest rates on citizens’ deposits are taken into account, and not the refinancing rate, the Court indicated.

A breach of contract is an action or inaction of an individual or legal entity in a certain situation that contradicts the terms of a previously concluded agreement with someone. Violation of the terms of the contract entails compensation for the violator and/or compensation for the injured party. Proceedings regarding punishment are usually conducted through the courts. Let's give an example of a violation of the terms of the contract and find out whether it can not be to the detriment of the “injured” party.

Example and consequences of violating the terms of the contract

Let's consider a simple example of a violation of the terms of the contract between the parties. Let's say two people signed, one person is the drawer of the bill, the other is the holder of the bill. The drawer undertakes to pay the amount of money borrowed within a certain period of time, as well as to give the creditor interest, if this is agreed upon and recorded in the security. A bill of exchange can be considered a kind of agreement between two parties.

Let us assume that the drawer did not pay the bill holder, that is, he violated the terms of the concluded agreement. What will happen in this case?

If it is not assigned, then sanctions are imposed on the debtor. Unless otherwise stated in the terms of signing the security, the debtor will be charged three percent of the amount daily. This is a simple example of punishment for violating the terms of a contract, let's consider the meaning of this legal element and try to answer the question: can violating the terms of a contract be beneficial?

It should not be assumed that violating the terms of the contract is necessarily disadvantageous to one party. In a non-random example of the use of a promissory note, it can be noted that failure to fulfill the conditions for the creditor will be a chance to increase income: he receives three percent of the debt amount per day until the debtor pays back the money. If the amount is repaid, for example, after a month, the lender will receive more than two hundred percent of the original loan amount.

This is the first proof of the benefits of breaking agreements. The second argument comes from the field of international politics: what should debtor countries do that cannot pay off their creditors (Greece or, oddly enough, the United States of America, which is worth eighteen trillion dollars)? If it is impossible to pay the money, then the country must transfer its assets, for example, land, to creditors. Imagine that part of the United States will go to Japan for unlimited use - this will simply be a breakthrough for industry, because working complexes will no longer have to be moved outside the country. So, violation of the terms of the contract in the form of non-payment of debts is very often beneficial to the supposedly “injured” party.

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Contents [Show]

Essential terms of the agreement: commentary on the new edition of the Civil Code of the Russian Federation

2. An agreement is concluded by sending an offer (offer to conclude) to one of the parties and its acceptance (acceptance of the offer) by the other party. 1. According to paragraph 1 of Article 432 of the Civil Code, in order to be recognized as concluded, it is necessary that an agreement was reached between the parties on all essential conditions.

1.1. Paragraph 2 of clause 1 of Article 432 of the Civil Code classifies three categories of conditions as essential terms of the contract.

Change and termination of the contract

Changes and termination are possible by agreement of the parties, unless otherwise provided by this Code, other laws or.

2. At the request of one of the parties, the contract can be changed or terminated by a court decision only: 1) in case of a significant violation by the other party; 2) in other cases provided for by this Code, other laws or agreement.

What terms of the contract are called essential under the Civil Code of the Russian Federation?

Mandatory or essential conditions are those that are subject to agreement, i.e.

j. in the absence of consent of the counterparties regarding any of them, the contract may be recognized as not concluded (clause 1 of article 432 of the Civil Code of the Russian Federation).

The legislator included these conditions as follows: As an example, let us cite the resolution of the AS SZO dated September 15, 2018 in case No. A66-12135/2015, in which the contract was declared not concluded due to the lack of agreement on the configuration of the tower crane and the presence of disagreements about the price of the goods.

The subject of the contract is what the partners have rights and obligations over.

In... ... Legal Encyclopedia A significant violation is a violation by one of the parties, which entails such damage for the other party that it is significantly deprived of what it had the right to count on when concluding the contract. Civil Code of the Russian Federation, art. 450, paragraph 2 ... Commercial electric power industry.

Dictionary-reference book: a significant violation of the contract is one of the grounds for changing or terminating unilaterally (as an exception to the general principle).

Failure to comply with the essential terms of the contract entails

The change agreement has certain boundaries.

In this case, it is permissible to change only the specific conditions, but not the type (type) of the contractual obligation. Change (termination) due to a significant violation and other circumstances may be changed or terminated: 1) by the court at the request of one of the parties: in case of a significant violation of the conditions; in cases expressly provided for by law or contract.

CIVIL CODE OF THE RF, Article 450

in case of a significant breach of contract by the other party; 2) in other cases provided for by this Code, other laws or agreement. A violation by one of the parties is considered significant, which entails such damage for the other party that it is significantly deprived of what it had the right to count on at the conclusion.

3. In case of unilateral refusal to perform in whole or in part, when such refusal is permitted by law or agreement of the parties, the contract is considered respectively terminated or modified,

Another general rule: modification or termination is permitted only by mutual agreement of the parties. However, there may be an exception to this general rule.

Significant violation of the terms of the contract by the other party. Not every violation of the terms gives the other party the right to demand, even in court, a change or termination of what has already been concluded, but only a significant violation is the basis for this. The law does not say which violations are considered essential to the contract, but provides general guidelines.

A material breach of the terms of the contract is one that entails such damage for the other party that it is substantially deprived of what it had the right to count on at the conclusion.

Unlike termination, a change by court decision is permitted in exceptional cases when its termination is contrary to the public interest or would entail significant damage to the parties.

Violation of essential terms of the contract

The lawyers of the Pravoved.ru portal will help you correctly draw up or analyze an already concluded agreement, and will also tell you what consequences you can expect.

Contact us for a consultation! Select a category Good afternoon! Is it possible to terminate a contract at the initiative of the contractor, despite the fact that the conditions for termination are not specified in the contract itself? reason for termination - the other party is trying to manipulate the terms, trying to find a way to get.

1. A unilateral refusal to fulfill a supply contract (in whole or in part) or a unilateral change thereof is permitted in the event of a significant violation of the contract by one of the parties (paragraph four of paragraph 2 of Article 450).

2. A violation of the supply contract by the supplier is considered significant in the following cases:

deliveries of goods of inadequate quality with defects that cannot be eliminated within a timeframe acceptable to the buyer;

repeated violation of delivery deadlines.

3. A violation of the supply contract by the buyer is assumed to be significant in the following cases:

repeated violation of payment terms for goods;

repeated non-selection of goods.

4. The supply contract is considered amended or terminated from the moment one party receives a notice from the other party of a unilateral refusal to fulfill the contract in whole or in part, unless a different period for termination or amendment of the contract is provided for in the notification or is not determined by agreement of the parties.

Commentary to Art. 523 Civil Code of the Russian Federation

1. According to the general rule enshrined in Art. 310 of the Civil Code of the Russian Federation, unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed, except in cases provided for by law. According to paragraph 1 of Art. 450 of the Civil Code of the Russian Federation, amendment and termination of the contract are possible by agreement of the parties. This rule is aimed at ensuring the stability of civil circulation.

There are several exceptions to this general rule. When establishing the rules for early termination of obligations, the legislation uses different concepts: termination of the contract, refusal of the contract or refusal to perform the contract. The differences between rescission and repudiation lie in the manner in which they are carried out. Thus, termination of a contract is a way to terminate contractual obligations by agreement of the parties or by applying to the competent authority (court, arbitration tribunal). Refusal from a contract is a unilateral measure; to terminate an obligation, the will of one party is sufficient.

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See, for example: Gribanov V.P. Exercise and protection of civil rights. 2nd ed., stereot. M.: Statute, 2001. P. 152; and also: Scientific and practical commentary on the Civil Code of the RSFSR / Ed. E.A. Fleischitz. M.: Legal. lit., 1966. P. 195.

Refusal from a contract may be classified as an operational measure in cases where it is used by a person in response to a violation of an obligation by the other party. At the same time, the “faulty counterparty” must also compensate for losses caused by failure to fulfill the obligation. The application of such an operational sanction by an authorized person may be challenged in court.

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See: Gribanov V.P. Exercise and protection of civil rights. P. 153.

In those cases where cancellation of the contract is allowed in accordance with the law at any time, it should be considered only as a way of unilateral termination of obligations.

The commented article provides for the possibility of unilateral refusal to fulfill the supply contract (in whole or in part) or unilateral change in it in the event of a significant violation of the contract by one of the parties. Thus, this is an operational measure that is applied by an authorized person unilaterally (without contacting the competent authorities) in the event of a significant violation of the contract.

The concept of “material breach” of a contract is evaluative. The commented article contains a reference to paragraph. 4 p. 2 tbsp. 450 of the Civil Code of the Russian Federation, which provides the legal definition of a significant breach of contract. A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is significantly deprived of what it had the right to count on when concluding the contract.

2. Having provided for the general concept of a significant breach of contract in paragraph. 4 p. 2 tbsp. 450 of the Civil Code of the Russian Federation, the legislator determines which violations are considered significant for the supply contract in paragraphs 2 and 3 of the commented article.

For the supplier, a violation of the contract is assumed to be significant when supplying goods of inadequate quality with defects that cannot be eliminated within a time period acceptable to the buyer, and repeated violation of the terms of delivery of goods, and for the buyer - repeated violation of terms of payment for goods and repeated non-sampling of goods.

Repeated violation is understood in judicial practice as the commission of a violation at least twice.

The commented article contains indications only of some grounds not provided for by other norms of the Civil Code of the Russian Federation. The Code also provides for other cases of unilateral refusal to execute a supply agreement. For example, in accordance with paragraph 3 of Art. 509 of the Civil Code of the Russian Federation, failure by the buyer to submit a shipping order within the prescribed period gives the supplier the right to refuse to fulfill the contract or demand payment from the buyer for the goods. The same right is granted to the supplier in clause 2 of Art. 515 of the Civil Code of the Russian Federation if the buyer (recipient) fails to pick up goods from the supplier’s warehouse within the appropriate period.

The Plenum of the Supreme Arbitration Court of the Russian Federation provided an explanation regarding Art. Art. 509 and 515 of the Civil Code of the Russian Federation. Clause 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 22, 1997 No. 18 states that when, under the terms of the contract, the transfer of goods is carried out in separate batches, refusal to execute it on the grounds provided for in Art. Art. 509 and 515, entails termination of the obligation as a whole, unless otherwise stated in the refusal itself. In this case, the relevant party has the right to demand compensation for losses caused by a change or termination of the contract only if the violation committed is significant.

The party that declared a unilateral refusal in connection with a significant violation of the terms of the contract on the part of the counterparty also has the right to make a claim for compensation for losses caused by termination or modification of the contract (clause 5 of Article 453 of the Civil Code). When considering a dispute arising from a supply contract under which a refusal to fulfill an obligation was declared, the court in all cases evaluates the parties' arguments about the legality of such a refusal if it is relevant to the claims (clause 20 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 22, 1997 . N 18).

It seems that the meaning of the instructions in paragraphs 2 and 3 of the commented article in cases of a significant violation is to distribute the burden of proof of the materiality of the violation of obligations under the supply contract.

In the cases listed in paragraphs 2 and 3 of the commented article, the violation of the contract is assumed to be significant. Thus, when considering in court a dispute arising from a supply agreement, under which a refusal to fulfill an obligation was declared in the cases specified in the commented article, the absence of a significant violation of the supply agreement must be proven by the party that committed such a violation.

The commented article does not establish an exhaustive list of grounds for refusal to fulfill a supply contract, therefore the parties to the contract can determine which of the violations of obligations they consider significant and in the presence of which violations the injured party has the right to unilaterally refuse to fulfill the contract in whole or in part.

3. Both the supplier and the buyer have the right to apply a unilateral refusal at their own decision, without contacting state authorities, but with mandatory notification of their counterparty. In this case, the choice of behavior - refusal or modification of the contract - also remains, respectively, with the supplier or buyer applying this measure of operational influence.

If in paragraph 3 of Art. 450 of the Civil Code of the Russian Federation contains a general rule that in case of unilateral refusal to fulfill a contract in whole or in part, when such refusal is permitted by law or agreement of the parties, the contract is considered respectively terminated or amended, then in paragraph 4 of the commented article the moment of respectively termination or amendment of the contract is specified .

The supply contract is considered amended or terminated from the moment one party receives a notice from the other party of a unilateral refusal to fulfill the contract in whole or in part, unless a different period for termination or amendment of the contract is provided for in the notification or is not determined by agreement of the parties.

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Civil Code of the Russian Federation

  • Article 404. Fault of the creditor

Article 393. Obligation of the debtor to compensate for losses

1. The debtor is obliged to compensate the creditor for losses caused by non-fulfillment or improper fulfillment of the obligation.

2. Losses are determined in accordance with the rules provided for in Article 15 of this Code.

3. Unless otherwise provided by law, other legal acts or contract, when determining damages, the prices that existed in the place where the obligation was to be fulfilled on the day the debtor voluntarily satisfied the creditor’s claim are taken into account, and if the demand was not voluntarily satisfied, - on the day the claim is filed. Based on the circumstances, the court may satisfy the claim for damages, taking into account the prices existing on the day of the decision.

4. When determining lost profits, the measures taken by the creditor to obtain it and the preparations made for this purpose are taken into account.

Article 394. Losses and penalties

1. If a penalty is established for non-fulfillment or improper fulfillment of an obligation, then the losses are compensated in the part not covered by the penalty.

The law or contract may provide for cases: when it is allowed to collect only a penalty, but not losses; when damages can be recovered in full in excess of the penalty; when, at the choice of the creditor, either a penalty or damages can be recovered.

2. In cases where limited liability is established for non-fulfillment or improper fulfillment of an obligation (Article 400), losses subject to compensation in the part not covered by the penalty, or in excess of it, or instead of it, may be recovered to the limits established by such a limitation.

Article 395. Liability for failure to fulfill a monetary obligation

1. For the use of someone else’s funds as a result of their unlawful retention, evasion of their return, other delay in their payment, or unjust receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment. The amount of interest is determined by the discount rate of bank interest at the place of residence of the creditor, and if the creditor is a legal entity, at its location on the day of fulfillment of the monetary obligation or its corresponding part. When collecting 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 was filed or on the day the decision was made. These rules apply unless a different interest rate is established by law or agreement.

2. If the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in the amount exceeding this amount.

3. Interest for the use of someone else's funds is charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the accrual of interest by law, other legal acts or agreement.

Article 396. Liability and fulfillment of obligations in kind

1. Payment of a penalty and compensation for losses in the event of improper fulfillment of an obligation do not relieve the debtor from fulfilling the obligation in kind, unless otherwise provided by law or contract.

2. Compensation for losses in the event of non-fulfillment of an obligation and payment of a penalty for non-fulfillment shall release the debtor from fulfilling the obligation in kind, unless otherwise provided by law or contract.

3. The creditor’s refusal to accept performance, which, due to delay, has lost interest for him (clause 2 of Article 405), as well as the payment of a penalty established as compensation (Article 409), release the debtor from fulfilling the obligation in kind.

Article 397. Fulfillment of an obligation at the expense of the debtor

If the debtor fails to fulfill the obligation to manufacture and transfer the thing into ownership, economic 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, within a reasonable time, to entrust the fulfillment of the obligation to third parties for a reasonable price. or fulfill it on your own, unless otherwise follows from the law, other legal acts, contract or the essence of the obligation, and demand from the debtor compensation for necessary expenses and other losses incurred.

Article 398. Consequences of failure to fulfill the obligation to transfer an individually defined thing

In case of failure to fulfill the obligation to transfer an individually defined thing into ownership, economic management, operational management or for compensated use to the creditor, the latter has the right to demand that this thing be taken away from the debtor and transferred to the creditor on the terms stipulated by the obligation. This right disappears if the thing has already been transferred to a third party who has the right of ownership, economic management or operational management. If the thing has not yet been transferred, the priority shall be given to the creditor in whose favor the obligation arose earlier, and if this cannot be established, to the one who filed the claim earlier.

Instead of demanding that the thing that is the subject of the obligation be transferred to him, the creditor has the right to demand compensation for losses.

Article 399. Vicarious liability

1. Before making claims against a person who, in accordance with the law, other legal acts or terms of the obligation, is liable in addition to the liability of another person who is the main debtor (subsidiary liability), the creditor must make a claim against the main debtor.

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

2. The creditor has no right to demand satisfaction of his claim against the principal debtor from a person bearing subsidiary liability if this claim can be satisfied by offsetting a counterclaim against the principal debtor or by undisputed collection of funds from the principal debtor.

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

Article 400. Limitation of the amount of liability for obligations

1. For certain types of obligations and for obligations related to a certain type of activity, the law may limit the right to full compensation for losses (limited liability).

2. An agreement to limit the amount of liability of a debtor under an adhesion agreement or another agreement in which the creditor is a citizen acting as a consumer is void if the amount of liability for a given type of obligation or for a given violation is determined by law and if the agreement was concluded before the occurrence of circumstances entailing liability for non-fulfillment or improper fulfillment of an obligation.

Article 401. Grounds for liability for breach of obligation

1. A person who fails to fulfill an obligation or performs it improperly shall be liable in the presence of guilt (intention or negligence), except in cases where the law or contract provides for other grounds for liability.

A person is considered innocent if, with the degree of care and prudence 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.

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

3. Unless otherwise provided by law or contract, a person who fails to fulfill or improperly fulfills an obligation when carrying out business activities shall be liable unless he proves that proper fulfillment was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions. Such circumstances do not include, in particular, violation of obligations on the part of the debtor's counterparties, lack of goods on the market necessary for execution, or lack of necessary funds from the debtor.

4. An agreement concluded in advance to eliminate or limit liability for intentional violation of an obligation is void.

Article 402. Responsibility of the debtor for its employees

The actions of the debtor's employees to fulfill his obligation are considered the actions of the debtor. The debtor is responsible for these actions if they lead to non-fulfillment or improper fulfillment of the obligation.

Article 403. Liability of the debtor for the actions of third parties

The debtor is responsible for non-fulfillment or improper fulfillment of the obligation by third parties who were entrusted with the performance, unless the law establishes that the third party who is the direct executor bears responsibility.

Article 404. Fault of the creditor

1. If non-fulfillment or improper fulfillment of an obligation occurred through the fault of both parties, the court accordingly reduces the amount of liability of the debtor. The court also has the right to reduce the amount of liability of the debtor 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.

2. The rules of paragraph 1 of this article apply accordingly in cases where the debtor, by virtue of law or contract, is liable for non-fulfillment or improper fulfillment of an obligation, regardless of his guilt.

Article 405. Debtor’s delay

1. A debtor who is late in performance is liable to the creditor for losses caused by the delay and for the consequences of an impossibility of performance that accidentally occurred during the delay.

2. If, due to the debtor’s delay, the performance has lost interest for the creditor, he may refuse to accept the performance and demand compensation for losses.

3. The debtor is not considered to be in default until the obligation cannot be fulfilled due to the creditor’s delay.

Article 406. Lender’s delay

1. The creditor is considered to be in default if he refused to accept the proper performance proposed by the debtor or did not take actions provided for by law, other legal acts or contract, or arising from business customs or from the essence of the obligation, before which the debtor could not fulfill his obligation.

The creditor is also considered overdue in the cases specified in paragraph 2 of Article 408 of this Code.

2. The creditor’s delay gives the debtor the right to compensation for losses caused by the delay, unless the creditor 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 instructions of the creditor, were entrusted with accepting the execution , do not answer.

3. Under a monetary obligation, the debtor is not obliged to pay interest during the creditor's delay.

Chapter 25. Liability for violation of obligations- the full text of the document with comments from legal experts and the opportunity to exchange opinions and experiences with legal professionals, leave your opinion or ask questions about articles of codes and laws, see comments from experienced colleagues.



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