Improper fulfillment of obligations: how to achieve compensation. What happens if you don't fulfill the terms of the contract? Violation of contractual obligations is punishable by

measures of liability of the parties

agreements for violation

contractual obligations

V. V. AVDEEV,

tax consultant

When concluding a contract, the parties expect that the fulfillment of the contractual terms of each of them will be carried out in the proper manner. But in practice, quite often there is a deviation from the terms of the agreement, and both one party and the other can violate the terms of the agreement.

In order to protect themselves from unpleasant consequences, counterparties provide in the contract certain measures of liability for each of the parties to the agreement for violation of contractual obligations.

Let us note that the application of sanctions for non-fulfillment or improper execution of a contract is a right, not an obligation of the parties.

By virtue of Art. 329 Civil Code Russian Federation(Civil Code of the Russian Federation) the fulfillment of obligations can be ensured by a penalty, a pledge, retention of the debtor’s property, a surety, a bank guarantee, a deposit and other methods provided for by law or contract.

For example, according to Art. 86 of the Customs Code of the Customs Union (annex to the agreement on the Customs Code of the Customs Union, taken by decision Interstate Council of the EurAsEC at the level of heads of state dated November 27, 2009 No. 17) payment of customs duties and taxes is ensured in the following ways:

In cash (money);

Bank guarantee;

By guarantee;

Pledge of property.

At the same time, the legislation of the member states of the Customs Union may provide for other methods of ensuring the payment of customs duties and taxes.

Accordingly, we can say that the law does not limit the parties in their right to provide in the contract for any other method of ensuring the fulfillment of obligations.

The invalidity of an agreement to ensure the fulfillment of an obligation does not entail the invalidity of this obligation (the main obligation).

The invalidity of the main obligation, in turn, entails the invalidity of the obligation securing it, unless otherwise established by law.

Very often, when concluding a contract, the parties provide for the payment of a penalty. This interim measure for the proper fulfillment of obligations is the most popular method.

Legal regulation penalties are provided by § 2 Ch. 23 of the Civil Code of the Russian Federation “Ensuring the fulfillment of obligations.”

According to paragraph 1 of Art. 330 of the Civil Code of the Russian Federation, a penalty (fine, penalty) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment. Upon a claim for payment of a penalty, the creditor is not required to prove that he suffered losses.

The creditor has no right to demand payment of a penalty if the debtor is not responsible for non-fulfillment or improper fulfillment of the obligation.

Article 331 of the Civil Code of the Russian Federation determines that an agreement on a penalty must be made in writing, regardless of the form of the main obligation. Failure to comply with the written form shall result in the invalidity of the liquidated damages agreement.

Note! It is necessary to conclude an agreement in writing; only then will the injured party be able to demand payment of a penalty. It does not matter in what form the main agreement is concluded: oral, simple written or notarized.

Typically, provisions for the payment of penalties are written directly into the

agreement However, they can also be reflected in an additional agreement, which is an integral part of the main contract.

Let us note that the payment of fines and penalties provided for in the agreement does not prove anything. After all, the debtor may consider that he has fully fulfilled all his obligations and does not have to pay fines. Moreover, disagreements may arise between the parties regarding the amount of fines, etc.

Thus, in order to confirm his consent to pay fines and penalties, the debtor must send a letter to the counterparty indicating the amount of sanctions and the deadline for their payment.

There are two types of penalties - fine and penalty.

The fine is a one-time amount, which is expressed as interest in proportion to a predetermined amount, for example, the cost of a service not provided on time.

A penalty is a penalty calculated continuously, on an accrual basis (for example, a certain percentage for each day of delay in fulfilling an obligation).

Penalty, based on the literal interpretation of Art. 330 of the Civil Code of the Russian Federation, can be legal and contractual.

So, by virtue of Art. 30.2 of the Land Code of the Russian Federation (LLC RF), in case of failure to fulfill the obligations provided for by this norm, as well as in case of improper fulfillment, a penalty is charged in the amount of one hundred and fifty-tenth refinancing rate of the Central Bank of the Russian Federation (which is valid on the day of fulfillment of such obligations) of the amount rent or the amount of land tax for each day of delay, unless otherwise provided by the agreement.

The contractual penalty is established by agreement of the parties, while the parties independently determine its amount, as well as the procedure for calculation.

A legal penalty (according to Article 332 of the Civil Code of the Russian Federation) is understood as a penalty established by law, i.e. the debtor is obliged to pay the creditor a legal penalty even if this penalty was not mentioned in the agreement.

In accordance with Art. 332 of the Civil Code of the Russian Federation, the creditor has the right to demand payment of a penalty determined by law (legal penalty), regardless of whether the obligation to pay it is provided for by agreement of the parties.

The amount of the legal penalty may be increased by agreement of the parties, unless the law prohibits this.

As a rule, cases of legal penalties are provided for in industry regulations.

So, according to Art. 108 of the Federal Law of January 10, 2003 No. 18-FZ “Charter of Railway Transport of the Russian Federation” for late delivery of baggage, the carrier pays to the passenger, recipient upon its delivery on the basis of an act drawn up at the request of the passenger, recipient, a penalty in the amount of 3% of the fee for baggage transportation for each day of delay (incomplete days are considered full), but not more than in the amount of the fee for the transportation of baggage, unless it proves that the delay occurred as a result of the provisions provided for in Part 1 of Art. 29 of this document of circumstances, elimination of a vehicle malfunction that threatens the life or health of people or other circumstances beyond the control of the carrier.

Delay in baggage delivery is calculated from 24 hours of the day when the baggage is due to arrive.

In case of delay of baggage and cargo luggage by customs authorities or other state control (supervision) bodies, the delivery time of baggage and cargo luggage by rail, provided for by the rules of passenger transportation, is increased by the period of the specified delay.

For reference: Art. 29 of the Railway Transport Charter of the Russian Federation stipulates, among other things, that due to force majeure circumstances, hostilities, blockades, epidemics or other circumstances beyond the control of carriers and infrastructure owners that impede transportation, the loading and transportation of goods and cargo luggage may be temporarily stopped or limited by the carrier or owner of the infrastructure with immediate notification in writing to the head of the federal executive body in the field of railway transport of such termination or restriction. The specified manager establishes the validity period for the termination or restriction of loading and transportation of goods, cargo luggage and notifies carriers and infrastructure owners about this.

Special and military railway transportation is not subject to temporary prohibitions imposed by the federal executive body in the field of railway transport, carriers or infrastructure owners on the loading and transportation of goods and cargo luggage to certain destinations, except in cases where it is impossible to carry out these transportations.

According to paragraph 2 of Art. 332 of the Civil Code of the Russian Federation, the parties have the right to increase the amount of the legal penalty in a written agreement, if in a particular case the legislation does not directly prohibit this.

A penalty can be imposed for violation of almost any term of the contract (for failure to provide accompanying documents for the transaction, for low-quality goods, for late payment of delivered goods, and so on).

Most often, a penalty is paid for delay in fulfilling accepted business obligations.

According to paragraph 1 of Art. 396 of the Civil Code of the Russian Federation, payment of a penalty and compensation for losses to the creditor in the event of improper fulfillment of an obligation does not relieve the debtor from fulfilling the obligation in kind, unless otherwise provided by law or contract.

Compensation for losses in the event of failure to fulfill an obligation and payment of a penalty for failure to fulfill it release the debtor from fulfilling the obligation in kind, unless otherwise provided by law or contract (clause 2 of Article 396 of the Civil Code of the Russian Federation).

The debtor may also be released from fulfilling his obligations in kind if the creditor has lost interest (clause 2 of Article 405 of the Civil Code of the Russian Federation) in his obligations or if the debtor has paid a penalty in the form of compensation (Article 409 of the Civil Code of the Russian Federation) (clause 3 of Art. 396 of the Civil Code of the Russian Federation).

In general, the debtor must pay a penalty even if the creditor did not suffer losses from his actions. The creditor has no right to demand payment of a penalty only if the debtor is not liable for non-fulfillment (improper fulfillment) of the obligation (Clause 2 of Article 330 of the Civil Code of the Russian Federation).

Let us recall that a penalty as a method of securing an obligation can in fact be applied to any of the obligations arising from the parties to the agreement. At the same time, when establishing the amount of the penalty, one should remember the rule enshrined in Art. 333 Civil Code of the Russian Federation.

Thus, if the penalty payable is clearly disproportionate to the consequences of violation of the obligation, then the debtor has the right to demand through the court

its reduction. This is confirmed by judicial practice. As an example, we can cite the decisions of the FAS Volga-Vyatka District dated 02/25/2009 in case No. A28-11957/2008-329/17, the FAS Povolzhsky District dated 05/28/2009 in case No. A55-17296/2008, the FAS Povolzhsky District dated 11/19 .2007 in case No. A12-5750/07-C25, FAS of the North Caucasus District dated 02.14.2008 No. F08-328/08 in case No. A32-7144/2007-2/69, etc.

Rules Art. 333 of the Civil Code of the Russian Federation do not affect the debtor’s right to reduce the amount of his liability on the basis of Art. 404 of the Tax Code of the Russian Federation and the creditor’s right to compensation for losses in cases provided for in Art. 394 Civil Code of the Russian Federation.

Article 404 of the Civil Code of the Russian Federation “The fault of the creditor” regulates that if failure to fulfill 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.

The same rules 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.

In accordance with Art. 394 of the Civil Code of the Russian Federation “Losses and penalties”, 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.

Law or agreement may provide for following cases: when recovery of only penalties, but not losses, is allowed; 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.

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

We remind you that by virtue of Art. 400 of the Civil Code of the Russian Federation according to certain species obligations and for obligations related to a certain type of activity, the law may limit the right to full compensation for losses (limited liability).

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.

In conclusion, we note that interest on a commercial loan and penalties should not be confused. Interest on a commercial loan is a payment for a financial service - deferred payment, which is not a violation of the contract.

If the agreements concluded between the parties indicate that interest will be charged for late payment, this is a penalty and should not be confused with a commercial loan. The penalty is a penalty (a measure of liability) and is collected from the debtor only if he violates the terms of payment established by the contract.

We also note that the current legislation does not exclude the simultaneous payment of both penalties and interest on the loan (resolution of the Federal Antimonopoly Service of the North Caucasus District dated September 21, 2005 in case No. F08-4235/2005).

Bibliography

1. Civil Code of the Russian Federation (part one): Federal Law of November 30, 1994 No. 51-FZ (as amended on July 27, 2010).

2. On the entry into force of the Land Code of the Russian Federation: Federal Law of October 25, 2001 No. 137-FZ (as amended on December 12, 2011).

3. Customs Code of the Customs Union: annex to the agreement on the Customs Code of the Customs Union, adopted by decision of the Interstate Council of the EurAsEC at the level of heads of state dated November 27, 2009 No. 17 (as amended on April 16, 2010).

The concept and principles of fulfillment of contractual obligations. Contracts are made to be executed. Only the execution of a contract can satisfy those economic needs that prompted the parties to enter into a contractual relationship.

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 services, etc.). It must be borne in mind that in mutual (bilaterally binding) contracts, each party acts in relation to its counterparty simultaneously as a debtor and a creditor. Therefore, the execution of such contracts consists of the performance of appropriate actions by both parties (counter-provision).

The basic principles of the law of obligations include:

• - the principle of inadmissibility of unilateral refusal to fulfill obligations;
• - the principle of proper performance (i.e. in accordance with the terms of the obligation and the requirements of the law);
• - the principle of real performance (the obligation must be fulfilled in kind, i.e. the debtor is obliged to perform exactly the action that constitutes the subject of the obligation, and this action should not be replaced by monetary compensation)

Methods of ensuring the fulfillment of contractual obligations. Ensuring obligations is a traditional institution of civil law. Such methods of ensuring the fulfillment of obligations as deposits, penalties, sureties and pledges were already known to Roman law. The need to use them was explained by the fact that the creditor has a significant interest in being confident in the fulfillment of obligations, and in ensuring compensation for possible losses, and in inducing the debtor to timely fulfill obligations under fear of unfavorable consequences for the debtor in in case of non-fulfillment or improper execution.

In accordance with Russian legislation, the obligation can be secured in one of the following ways: penalty, guarantee, deposit, pledge, bank guarantee and retention of the debtor's property.

The parties may also use other methods of securing obligations that do not contradict the mandatory norms of civil law, for example, depositing a certain amount of money with a third party.

1. Penalty(fine, penalty) - an amount of money determined by law or contract that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in case of delay in fulfillment.

The penalty performs two functions: on the one hand, it is a way of ensuring the fulfillment of obligations, on the other, it is a form of civil liability.

It represents a convenient means of simplified compensation for the creditor's losses caused by the debtor's failure to fulfill or improper fulfillment of his obligations. The procedure for calculating the amount of money constituting a penalty may be different: in the form of a percentage of the amount of the contract or its unfulfilled part; in a multiple ratio to the amount of the unfulfilled or improperly fulfilled obligation; in a fixed amount.

2. Deposit.The essence of a pledge is that the creditor under the obligation secured by the pledge (pledgee) has the right, in the event of failure of the debtor to fulfill this obligation, to receive satisfaction from the value of the pledged property, preferentially before other creditors of the person who owns this property (the pledgor), with exceptions established by law(Clause 1 of Article 334 of the Civil Code).

Pledge is one of the most preferred ways to secure obligations.

Firstly, a property pledge agreement ensures the availability and safety of this property at the time when the debtor has to pay off the creditor.

Secondly, a pledge of the debtor’s property provides the creditor-pledgee with the opportunity to satisfy his claims at the expense of the pledged property preferentially before other creditors.

Thirdly, the real danger of losing property in kind (and the subject of collateral is, as a rule, especially valuable, so-called quick-liquid property) is a good incentive for the debtor to fulfill his obligations properly.

As a rule, the debtor under the obligation secured by the pledge acts as the mortgagor of the property, but a third party can also be the mortgagor. In any case, the thing pledged must belong to him by right of ownership.

In certain cases, participation in these relations is allowed not by the owner of the thing, but by subjects of economic management rights (state and municipal unitary enterprises). But since the transfer of property as collateral means the disposal of this property, unitary enterprises can become mortgagors only with the consent of the owner. Failure to comply with this requirement entails recognition of the pledge agreement as a void transaction.

As for the pledgee, a creditor can act in this capacity for any civil obligation.

Collateral primarily secures claims based on loan relationships, although it can be used to secure any other obligations that do not contradict the law.

The subject of pledge can be any property (Article 336 of the Civil Code). At the same time, property (in the civil sense) includes not only things, i.e. property in kind, but also property rights (Article 128 of the Civil Code). However, not every right can be alienated or transferred to another person in a different form. In particular, the transfer to another person of rights that are inextricably linked with the personality of the creditor, for example, claims for alimony and compensation for harm to life or health (clause 1 of Article 336 of the Civil Code). In cases where the subject of the pledge is other property rights, their pledgor can only be the person who owns the pledged right.

By general rule, a necessary feature of the subject of pledge should be its “marketability”: only what the law does not prohibit selling is accepted as pledge. It is not permitted to use as collateral, firstly, things that have been withdrawn from circulation, secondly, claims that are inextricably linked with the identity of the creditors, and thirdly, certain types of property, the collateral of which is expressly prohibited by law.

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

Relations regarding the pledge of property must be formalized by an agreement. To category The essential terms of the pledge agreement include: the subject of the pledge and its valuation, the essence, size and deadline for fulfillment of the main obligation secured by the pledge, an indication of who has the pledged property(Clause 1 of Article 339 of the Civil Code).

The terms of the agreement on the subject of pledge must contain information allowing the identification of the pledged property. Judicial practice proceeds from the fact that in the absence of such information in the pledge agreement, the essential condition of the agreement on its subject is inconsistent, and the pledge agreement itself is not concluded.

General requirement for pledge agreement form is that it must be in writing. However, the mortgage agreement is always subject to notarization. In the same qualified form (notarization), agreements on the pledge of movable property or rights to property, which serve as security for obligations under the contract that require notarization, must be concluded. However, the requirements for drawing up a mortgage agreement are also subject to state registration, like any other transaction with real estate (Article 131 of the Civil Code). Failure to comply with the notarized form of the pledge agreement or the rules on state registration of the pledge agreement entails its invalidity.

3. Suretything is the guarantor undertakes to be responsible to the creditor of another person for the latter’s fulfillment of his obligation in whole or in part(Article 361 of the Civil Code). Thus, the guarantee increases the likelihood of fulfillment of the obligation for the creditor, since in the event of its violation by the debtor, the creditor can present its claims to the guarantor.

A guarantee is an agreement for which a mandatory written form is established (Article 362 of the Civil Code). The content of the obligation arising from the guarantee agreement is that the guarantor undertakes, in the event of a violation by the debtor of 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 extent of the debtor's responsibility for the corresponding violation of the main obligation. A different amount of the guarantor’s monetary obligation may be determined by the guarantee agreement. In this case, they say that the guarantor has assumed the obligation to bear not full, but partial responsibility for the debtor.

If there is no corresponding provision in the contract, the guarantor will be liable to the creditor in the same way and to the same extent as the debtor, i.e. in addition to the amount of the debt, he will have to pay the interest due to the creditor, reimburse legal costs for debt collection and other losses caused by the debtor’s failure to fulfill or improper fulfillment of his obligations (clause 2 of Article 363 of the Civil Code).

As for the procedure for fulfilling an obligation arising from a surety agreement, the current Civil Code proceeds from the fact that this obligation, in relation to the debtor’s liability to the creditor for non-fulfillment or improper fulfillment of the main obligation, is joint and several in nature (clause 1 of Article 363 of the Civil Code).

The joint and several nature of the guarantor's obligation means that the creditor has the right to present his claims both to the debtor under the main obligation and to the guarantor; both together and separately; both in full and in part of the debt (clause 1 of Article 323 of the Civil Code). The final type of claim, the resolution of such procedural issues as the composition of the defendants and the subject of the claim against each of them, depends only on the creditor.

The surety agreement may determine the period for which it is given.

As a legal relationship, a surety agreement is an obligation that is generally one-sided: on the creditor's side - the right to demand the guarantor to bear responsibility for the debtor who has not fulfilled the obligation, on the guarantor's side - to bear such an obligation.

The guarantor who has fulfilled his obligation, i.e. one who bears responsibility for a debtor who has violated an obligation is given the right to reclaim the debt against the debtor. In this case, the rights of the creditor under the main obligation, as well as the rights of the creditor as a pledge holder (including in relation to a third party acting as a pledger), are transferred to the guarantor. The scope of the creditor's rights that are transferred to the guarantor is determined by the amount of claims satisfied by the latter.

In addition to the rights of claim arising from the main obligation and the pledge securing it, the guarantor who has fulfilled his obligation also receives independent rights of claim in the form of payment of interest on the amount paid to the creditor, as well as compensation for losses incurred in connection with liability for the debtor due to a violation the last of the main obligations (clause 1 of Article 365 of the Civil Code).

4. Bank guarantee is that a bank, other credit institution or insurance organization (guarantor) gives, at the request of another person (principal), 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 submission by the beneficiary of a written demand for its payment(Article 368 of the Civil Code).

Here, only banks, other credit institutions or insurance organizations can act as a guarantor. The person who turns to the guarantor with a request to issue a bank guarantee (principal) is the debtor in the main obligation, the fulfillment of which is ensured by the bank guarantee. Finally, the person with the right to make a claim against the guarantor (the beneficiary) is the creditor in the principal obligation.

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

The beneficiary's right against the guarantor can be exercised by submitting a written demand, which must comply with the conditions provided for by the bank guarantee itself. A claim or any other representation of a demand in writing that would comply with the terms of the issued guarantee may be recognized as such. The claim (demand) must indicate what the principal’s violation of the main obligation is, to secure which the bank guarantee was issued. The beneficiary's claim must be submitted to the guarantor before the expiration of the period specified in the guarantee (Article 374 of the Civil Code).

Further, the relationship between the guarantor and the principal is characterized by the fact that the bank guarantee must be issued on a reimbursable basis, i.e. for issuing a bank guarantee, the principal pays a fee to the guarantor (clause 2 of article 369 of the Civil Code). The amount of such remuneration and the procedure for its payment are established by the parties.

As a general rule, a bank guarantee is irrevocable, and the rights of the beneficiary under the bank guarantee are non-transferable, because the beneficiary's claim against the guarantor cannot be transferred to another person (Articles 371, 372). Both of these rules are dispositive. Therefore, the guarantee may provide for a different rule.

One of the main distinguishing features of a bank guarantee, which sets it apart from all other methods of ensuring the fulfillment of obligations, is the independence of the bank guarantee from the main obligation. The Civil Code specifically emphasizes that the obligation of the guarantor to the beneficiary provided for by a bank guarantee does not depend in the relations between them on the main obligation to secure the fulfillment of which it was issued, even if the guarantee contains a reference to this obligation (Article 370 of the Civil Code).

The grounds for termination of a bank guarantee may be: payment to the beneficiary of the amount for which the guarantee was issued; the end of the period specified in the guarantee for which it was issued; the beneficiary waives his rights under the guarantee and returns it to the guarantor; waiver by the beneficiary of his rights under the guarantee by means of a written statement releasing the guarantor from his obligations; compensation (Article 409); offset of a counterclaim of the same type (Article 410); coincidence of debtor and creditor in one person (Article 413); novation of an obligation (Article 414 of the Civil Code) and others.

The only exception is the basis for termination of an obligation, such as impossibility of fulfillment (Article 416), which cannot be applied to any monetary obligation, including a bank guarantee.

The guarantor, who has paid the appropriate amount to the beneficiary, has the right to file recourse claims against the principal.

5. Retention.Creature of Hold is that the creditor, who has the thing to be transferred to the debtor or a person specified by him, is given the right, in the event of failure by the debtor to fulfill his obligation to pay for this thing on time or compensation to the creditor for costs and other losses associated with this thing, to retain it until such time until the corresponding obligation is fulfilled by the debtor(Article 359 of the Civil Code).

The peculiarity of such security for the fulfillment of an obligation as retention is that the creditor has the right to retain the debtor’s thing until the latter fulfills his obligation directly, i.e. To exercise this right, the creditor does not need the possibility of retaining the debtor's property to be provided for in the contract. Any creditor under any contractual obligation has the right of retention (for example, a custodian awaiting payment for services related to the storage of a thing, a carrier who does not release the cargo to the recipient until full payment for the transportation performed, etc.), except in cases where the contract otherwise provided (clause 3 of Article 359 of the Civil Code).

If, despite the measures taken by the creditor to retain the thing, the debtor nevertheless fails to fulfill his obligation, then the creditor has the right to foreclose on the thing retained by him (Article 360 ​​of the Civil Code) in the manner prescribed for collateral relations.

Based on the analysis of current legislation the subject of retention may be movable property except for money.

By its legal nature, the right of lien is significantly different from the right of pledge. Firstly, the basis for the emergence of the right of pledge is, as a rule, an agreement and, as an exception, a direct indication in the law. The basis for the emergence of the right of lien is the possession of the debtor's property by the creditor. Secondly, the lien does not have such an integral feature of the pledge as the right of succession; on the contrary, the disposal of property from the actual possession of the creditor terminates the right of lien, therefore the subject of the right of lien, unlike the pledgee in a mortgage, is not given the right to reclaim the subject of the lien from third parties. Thirdly, the essential terms of the pledge agreement are the subject of the pledge and its valuation, while the retention of property is a unilateral transaction.

6. Deposit.A deposit is recognized as an amount given by one of the contracting parties against payments due from it under the contract to the other party, as proof of the conclusion of the contract and to ensure its execution.(Clause 1 of Article 380 of the Civil Code).

The specific features of the deposit are as follows.

Firstly, the deposit can only secure obligations arising from contracts; therefore, it cannot be used to secure tortious obligations, obligations arising from unjust enrichment, and some others.

Secondly, the deposit, being a way to secure a contractual obligation, simultaneously serves as evidence of the conclusion of the contract. This means that if the parties do not dispute the fact of issuing (receiving) the 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.

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

The legal regulation of the deposit is supplemented by provisions determining the fate of the sum of money paid as a deposit in two specific cases, namely: when there are doubts as to whether the amount paid is a deposit (in particular, due to non-compliance with the rule on the simple written form of the deposit agreement), in this case, the deposited amount of money is recognized as an advance unless otherwise is proven (clause 3 of Article 380); when the obligation secured by the deposit is terminated on the grounds established by law before its execution begins, in this case the paid amount of money must be returned to the party who made the deposit (clause 1 of Article 381 of the Civil Code).

The deposit, first of all, is intended to prevent non-fulfillment of the contract. This purpose is served by the rules on the consequences of failure to fulfill an obligation secured by a deposit. If the party who provided the deposit is responsible for the failure to fulfill the obligation, the amount of money paid as the deposit remains with the other party. If the party that received the deposit is responsible for the failure to fulfill the obligation, it is obliged to pay the party that paid the deposit double the amount of the deposit (clause 2 of Article 381). These rules apply only when the obligation is not fulfilled by the parties in full, and do not apply to cases of improper fulfillment of contractual obligations.

Failure to fulfill an obligation naturally entails compensation for losses. If the party that provided the deposit is responsible for non-fulfillment of the contract, it must compensate for losses in excess of the amount of the deposit. In cases where the party who received the deposit is responsible for failure to fulfill the contract, the other party to the obligation who provided the deposit may demand payment of double the amount of the deposit and, in addition, compensation for losses in excess of the single amount of the deposit.

Sanctions for violation of the contract. Failure to fulfill or improper fulfillment 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 a legal norm.

Civil sanctions, depending on the basis for their application, can be contractual or non-contractual.

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

Civil liability has a number of characteristic features, distinguishing it from measures of liability in other branches of law, and above all public law. These signs (features) are that it:

• - always has a property nature (it affects not the person himself, but his property sphere);
• - is a restorative measure (aimed at restoring the creditor’s property status, and not at punishing the offender);
• - is always applied in favor of the creditor and not the state;
• - applies only at the initiative and discretion of the creditor;
• - can be implemented by the offender voluntarily, without the use of state coercion;
• - as a rule, it can be provided for by the parties themselves in the contract or changed by the contract in comparison with how it is defined in the dispositive norms of the law.

Forms of civil liability. The forms of civil liability are:

• - compensation for losses;
• - collection of penalties;
• - collection of interest for the use of others' in cash;
• - compensation for moral damage.
• 1. Compensation for damages. Losses are understood as real damage (i.e., expenses that the creditor has made or will have to make to restore the violated right, the value of lost property or the value by which the value of damaged property has decreased) and lost profits (i.e., lost income that the victim would have received under normal conditions of civil circulation, if his right had not been violated).

Compensation for damages 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.

2. Penalty. In legislation, fines and penalties are used as types of penalties. If it is difficult to identify any special features regarding fines, then the specific features of penalties in the form of penalties are obvious. They consist in the fact that a penalty is established in case of delay in fulfilling an obligation, i.e. it is intended to ensure only timely submission of fulfillment of the obligation; the penalty, as a rule, is determined as a percentage in relation to the amount of the obligation not fulfilled on time; The penalty is a continuing penalty that is collected for each subsequent period of delay in an unfulfilled obligation.

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

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 main obligation, which may also arise from an oral transaction. Failure to comply with the written form shall result in the invalidity of the liquidated damages agreement.

Legal the penalty is subject to application regardless of whether the obligation to pay it is provided for by agreement of the parties (Article 332 of the Civil Code). True, the fate and scope of application of a legal penalty largely depend on the legal norm in which it is contained. If a penalty is provided for by a mandatory norm, it is subject to unconditional application. In cases where the provision on a penalty is contained in a dispositive norm, it is applied only insofar as the parties by their agreement did not provide for a different amount of the penalty.

The amount of a legal penalty can be changed by agreement of the parties only upward, unless this is prohibited by law (clause 2 of Article 332).

Penalties differ in their relationship to losses caused by the same violation of the contract for which the penalty is established. The general rule is offset penalty(losses are recovered only in that part that remains not covered by the penalty). However, as an exception to this rule, the law or contract may provide for cases where only a penalty is recovered, but not damages ( exceptional penalty), when losses are recovered in full amount in addition to the penalty ( penalty or cumulative penalty), as well as when, at the choice of the creditor, either losses or a penalty can be recovered ( alternative penalty).

3. Collection of interest for the use of other people's funds is a specific form of liability applied for non-fulfillment or improper fulfillment of monetary obligations (Article 395 of the Civil Code of the Russian Federation).

The amount of interest for the use of other people's funds is determined according to the uniform 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 unlawful use until the day of actual payment.

4. Compensation for moral damage is aimed at compensation for the physical or moral suffering of the victim caused by the violation of his non-property (or property if this is specified in the law) rights (Article 151, 1099-1101 of the Civil Code of the Russian Federation).

Moral damage is compensated in monetary form. 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, and his individual characteristics.

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.

According to 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.

Definition. Losses as a form of liability. Real damage. Lost profit. Determination of the amount of losses. Losses and penalties.

1. The form of civil liability for breach of obligations should be understood as a method of imposing negative consequences on the faulty debtor.

Today, civil law knows three forms of assigning liability:

Recovery of damages as a universal form of liability;

Imposing the obligation to pay interest for the use of other people's funds;

Collection of penalties.

Since penalties are the subject of a separate chapter “Ensuring the fulfillment of obligations” of this textbook, within the framework of this chapter only losses and payment of interest for the use of other people’s funds are analyzed (the final paragraph of this chapter).

2. Losses as a form of liability for violation of obligations.

The legal concept of losses is established in paragraph 2 of Art. 15 Civil Code of the Russian Federation.

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 (real damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right was not violated (lost profits).

Thus, in accordance with the law, losses can consist of two components:

Real damage and

Lost profit.

Both actual damage and lost profits can act as consequences of breach of obligation, both jointly and separately; It is allowed to search for them both jointly and separately at the request of the creditor.

3. Real damage.

The law establishes two ways to determine the amount of actual damage.

First. The amount of actual damage is determined based on the reduction in the creditor’s property estate, regardless of whether the right “perished” or was partially violated.

Thus, the amount of damages in connection with the failure to fulfill a purchase and sale agreement on the transfer of ownership of an item, under which the buyer paid the full cost of the item, but did not receive the item in ownership, will amount to the amount paid by the creditor, since it was by the latter that the creditor’s property “decreased.”

Second. The amount of actual damage is determined based on the expenses that the person whose right has been violated has made or will have to make to restore the violated right. This rule assumes variability in the behavior of the creditor, who can restore his right, and then seek from the debtor the amount of expenses incurred or establish the amount of expenses that will be incurred by him in the future to perform the same actions, and demand the recovery of such.

So, if we consider the previously given example related to the seller’s failure to fulfill the obligation to transfer an item into the ownership of the buyer, the buyer has the right to purchase the same item from another seller and demand the price he paid from the faulty seller or prove in court proceedings the value of a similar item and find the amount based on assumptions proven by him about the expenses that he will have to incur to restore the violated right (purchase of the same thing).

The rule on the possibility of collecting expenses that a person whose right has been violated will incur to restore the violated right is, of course, established in the interests of the creditor, who may not spend his own funds to restore the violated rights, but do so at the expense of the debtor.

The choice of method for determining the amount of damages caused is left to the discretion of the creditor (within the framework of procedural law, it is implemented in the form of an independent determination by the plaintiff of the subject of the claim).

When choosing a method for determining the amount of damages to be compensated, you should always proceed from the specific situation. Thus, if the contractor fails to fulfill the obligation under a construction contract to transfer the immovable thing into the ownership of the customer (clause 2 of Article 703 of the Civil Code of the Russian Federation), the customer has the following options for determining the amount of damages subject to compensation:

1) in the amount of the amount paid under the construction contract - derogation of the customer’s property;

2) in the amount that was spent on the acquisition of similar real estate (if at the time of going to court the thing was acquired into ownership from a third party);

3) in the amount that the customer will have to spend on the acquisition of a similar immovable thing or pay another contractor for the creation of the same thing - in the amount market value things or the market value of work.

All of the mentioned methods for determining the amount of actual damage are mutually exclusive; the creditor can choose only one of them, and it is impossible to use them simultaneously. It should be noted that if the creditor, before filing a claim against the debtor, restored the violated right, incurred the corresponding expenses, in our example, acquired an immovable thing, it is allowed to recover only the expenses that were incurred; the use of other methods of determining the amount of actual damage is unacceptable, even if the creditor can justify within trial a greater amount of expenses than he actually incurred. This circumstance is due to the compensatory nature of civil liability for violation of obligations, which excludes enrichment of the creditor in any form.

4. Lost profits are lost income that a person would have received under normal conditions of civil transactions if his right had not been violated.

Lost profits are subject to recovery from the faulty debtor along with losses in the form of actual damage.

Thus, untimely completion of construction work may lead to the fact that the customer under a construction contract will not be able to promptly begin using the real estate and, therefore, for example, will not receive rental payments from potential tenants for the period of delay by the contractor. When determining the amount of lost profits (lost income), it should be taken into account that the concept of such income is not equal to the concept of the creditor’s cash turnover for a certain period, but, on the contrary, is synonymous with the concept of profit; accordingly, the amount of lost profits should be determined taking into account the reasonable costs that the creditor must would have been incurred if the obligation had been performed.

In the example given, the amount of lost profits should be determined as the difference between the amount of all possible rental payments for the period of delay and the costs associated with the operation of real estate, wages to employees, etc. (all types of costs must be taken into account).

5. From the very concept of losses and methods for determining their size, there is wide freedom of choice for the creditor. Practice shows that only a proper assessment of the entire set of circumstances will make it possible to choose the appropriate method of protecting the right, to correctly determine the form in which losses should be sought in order to fully restore the property position of the creditor.

Thus, if since the conclusion of the construction contract there has been a significant increase in prices for real estate, it seems absolutely irrational to seek losses (in the form of actual damage) in the amount paid under the contract, because this will not allow the violated right to be fully restored. The reverse price dynamics (price reduction since the conclusion of the contract) will allow us to conclude that it is more justified to recover the amount paid under the contract.

When collecting damages in the form of lost profits, it should be taken into account that the courts are very cautious in their recovery, which is due to the additional nature of the lost profits in relation to the actual damage; accordingly, a scrupulous approach to proving the grounds for imposing liability on the debtor in the form of collecting lost profits seems justified.

Arbitrage practice

Clause 11, 49 of the resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated 01.07.96 N 6/8.

Practice shows that the vast majority of claims for recovery of losses in the form of actual damage, and even more so in the form of lost profits, are rejected solely on procedural grounds - due to the inability of the plaintiff (creditor) to prove the grounds for assigning liability in the specified form to the defendant (debtor). In this regard, a clear understanding of what exactly is meant by the grounds of liability for violation of obligations acquires particular relevance.

6. Civil Code of the Russian Federation Special attention focuses on the relationship between the two main forms of civil liability - losses and penalties. Moreover, the options for the relationship between losses and penalties underlie the most significant classification of types of penalties: credit, penalty, exceptional and alternative.

As a general rule, if a penalty is established for non-fulfillment or improper performance of an obligation, then the losses are compensated in the part not covered by the penalty. This is an offset penalty. The contract or law may provide otherwise.

Forms of civil liability: compensation for losses, collection of penalties, loss of deposit. Legal nature of interest on a monetary obligation. Implementation of the principle of full compensation for losses.

Forms (measures) of civil, and in particular contractual, liability are forms of expression of adverse consequences in the property sphere of the offender, which are a consequence of his offense.

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

Compensation for losses

The general form of liability under 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-fulfillment or improper fulfillment of the obligation.

The concept of “losses” must be distinguished from the categories of “harm” and “damage”, 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 tortious obligations.

The actual damage is considered as one of components losses. As for the concept of “harm,” its scope is limited by the rules on tortious obligations.

In Art. 15 of the Civil Code establishes the principle of full compensation for losses, which states that a person whose right has been violated may demand full compensation for losses caused to him, if the law or contract does not provide for compensation for losses in smaller size. In this case, losses mean 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 (real 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 profits).

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

However, the compensation to the creditor must be adequate to put him in an appropriate position. When compensating for losses, the creditor should not receive anything extra that goes beyond what is necessary, which allows him to restore his violated right. The issue should be resolved through 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 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 funds (Article 395 of the Civil Code).

Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8 “On some 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 is necessary to keep in mind that The actual damage includes not only the expenses actually incurred by the relevant person, but also the expenses that this person will have to make 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 an estimate (calculation) of the costs of eliminating deficiencies in goods, works, services; an agreement defining the amount of liability for violation of obligations, etc.

As for the amount of lost profits (lost income), in the said joint Resolution of the Plenums of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation No. 6/8, arbitration courts and courts of general jurisdiction were asked to determine it taking into account the reasonable costs that the creditor should have incurred if the obligation had been fulfilled .

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

The Civil Code has determined the minimum limit for the amount of lost profits in the case where 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 offender. This provision ensures the principle that no one can benefit from a violation of the right, and also significantly facilitates the process of proving the amount of damages to be compensated.

Collection (payment) of penalties

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 to be paid by the debtor to the creditor in the event of non-fulfillment or improper fulfillment of the obligation.

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

Firstly, the penalty is collected by a court decision or voluntarily paid by the debtor only in the event 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, a penalty, as well as losses, is subject to application only if the conditions necessary for the onset of civil liability are present, which follows from Art. 330 of the Civil Code, according to which the creditor has no right to demand payment of a penalty if the debtor is not responsible for non-fulfillment or improper fulfillment of the obligation.

Fourthly, the obligation of a debtor who has violated an obligation to pay a penalty is ensured by state coercion, as evidenced by the inclusion of the collection of a penalty among the 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 contract, in case of violation of the corresponding obligation and the application of liability in connection with this, the ratio of the payable penalty and compensation for losses must be determined according to the rules established by the Civil Code.

The essence general rule, which determines the ratio of the penalty and losses, is that losses are compensated in the part not covered by the penalty (offset penalty).

The law or agreement may determine a different ratio of penalties and losses, the possible options of 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 amount in addition to the penalty (the so-called penalty);
- at the choice of the creditor, either a penalty or losses (alternative penalty) can be recovered.

Losses are recovered only in cases where they are actually caused.

Losses are an uncertain value, they are revealed only after the offense, while a penalty is a precisely fixed value, pre-established and known to the participants of the obligation.

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

Interest on a monetary obligation

A special place in the Civil Code is occupied by Art. 395, devoted to 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 debtor’s obligation to pay interest for the use of someone else’s funds is established for all cases of their unlawful retention, evasion of their return, as well as unjustified receipt or savings at the expense of another person, including when monetary obligations arose from an agreement.
Secondly, the amount of interest for the use of other people's funds is determined by the discount rate 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 Directive No. 2873-U “On the amount of the Bank of Russia refinancing rate.”
Thirdly, interest for the use of other people's funds in relation to losses is of an offset nature.
Fourthly, the period during which interest is accrued for the use of other people's funds ends on the day the amount of debt is paid to the creditor, unless a shorter period is established by law, otherwise legal act or an agreement.

In the event that the collection of the specified interest is carried out by a court decision, interest for the use of someone else's funds must be accrued for the period from the day the court makes the relevant decision to the day of its actual execution.

Conditions of civil liability

The basis of civil liability (single and general) 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 violator to the victim, its general goal is the restoration of the violated rights based on the principle that the amount of liability corresponds to the amount of harm or damage caused.

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

In relation to certain types of violated subjective civil rights, as well as to entities that committed their violation, the legislator formulated mandatory General requirements, compliance with which is necessary for the application of civil liability.

The conditions for civil liability are:

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

Illegality of behavior is a violation of the law by corresponding actions or inactions. Illegality refers to necessary conditions civil liability.

Causality is one of the conditions of liability, which consists in the fact that the negative consequences of a violation of the contract were a consequence of the unlawful behavior of the debtor.

Harm (losses) are negative consequences caused by unlawful behavior in the property sphere of the victim.

The guilt of the violator is the mental attitude of the violator of the law to his actions and their consequences. The following forms of guilt are distinguished: intent, simple negligence and gross negligence.

Intentional guilt consists of intentional actions or inaction of the debtor for the purpose of non-fulfillment or improper fulfillment of an obligation.

Negligence arises when the debtor, when fulfilling 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 is the failure of the debtor to show the minimum degree of care that could be expected from the average participant in civil transactions, the failure of the debtor to take minimum measures for the proper fulfillment of obligations.

Types of civil liability. Liability 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. Non-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 liability with multiple persons, shared, joint and subsidiary liability is distinguished.

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

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

Vicarious 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 bears liability to the creditor in addition to the liability of the main debtor.

One should distinguish from subsidiary liability the responsibility of the debtor for the actions of third parties, which occurs in cases where the fulfillment of an 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 related to the creditor by civil legal relationship. Therefore, the creditor can present his claim only against his debtor, but not against a third party who did not fulfill or improperly fulfilled the obligation. In such cases, the debtor is liable to the creditor for non-fulfillment or improper fulfillment of the obligation by a third party (Article 403 of the Civil Code).