Property Loss Compensation Agreement. Indemnification Agreement. Compensation for losses and losses. Compensation for losses of the Civil Code of the Russian Federation.
Federal Law dated 08.03.2015 No. 42-ФЗ supplemented the Civil Code of the Russian Federation with new mechanisms for regulating legal relations that had not previously been used in Russian law. An example of such a norm is Art. 406.1 of the Civil Code of the Russian Federation, which fixed the compensation for losses incurred upon the occurrence of circumstances established by the contract. For this, it is necessary to conclude an appropriate agreement, under the terms of which one party compensates the counterparty for losses incurred by it for the reasons specified in the agreement.
The subject of such an agreement is the need to compensate for losses not caused by the failure to fulfill obligations of one of the parties. The reason for the losses, as a rule, does not depend on the will of the parties. How this rule works, let us consider the example of the court case No. А56-71620 / 2018.
The plot of the case:
The plaintiff filed a lawsuit against PJSC for the recovery of a monetary amount, the claims are based on a shareholder agreement providing for the procedure for voting by shares of a third party.
The agreement was concluded for the purpose of purchasing property from a third party by the defendant, and the plaintiff as a result of the sale of the object was to receive dividends in proportion to his share in the charter capital of the third party.
Concluding the agreement, the parties established that if dividends are not received or received in an amount less than stipulated in the agreement, the PJSC, as an interested person in the purchase of real estate, pays the Claimant the lost profit in the amount of dividends payable by agreement, or in case of incomplete payment - in the form differences between this amount and the amount of dividends paid.
The plaintiff complied with the terms of the transaction, the third party and the defendant entered into a contract of sale of real estate, resulting in a profit, but its size was less than that which the parties expected, initially signing the agreement.
Objecting to the claimed requirements, the defendant noted that the text of the agreement implies that compensation for lost profits in the event of incomplete payment of dividends is a measure of responsibility, and therefore, the agreement does not establish the possibility of recovering losses in the sense of Article 406.1 of the Civil Code of the Russian Federation, the agreement is not an agreement on compensation for losses and should not provide for determining the amount of dividends on the basis of assumptions about the future size of profit; there is no causal relationship between the actions of the defendant and the financial losses of the plaintiff; dividends were paid to the plaintiff in full, the amount of which was agreed by the shareholders.
The trial court satisfied the stated requirements. The appeal agreed with the findings of the trial court.
Judicial act: Resolution of the Thirteenth Arbitration Court of Appeal of 10/14/2019 in case No. A56-71620 / 2018
Court findings:
1. Based on the analysis of the provisions of Article 406.1 of the Civil Code of the Russian Federation, the courts concluded that the obligation to compensate a party to a transaction for financial losses may arise both from a separate agreement and under the terms of a corporate agreement, one of which is a shareholder agreement.
2. The court, referring to the position of the decision of the Plenum of the Armed Forces of the Russian Federation dated March 24, 2016 No. 7, noted that regardless of the failure to fulfill obligations and the presence or absence of a causal link between the actions of this party and losses resulting from the onset of obligations by certain parties, losses are compensated for the rules of Article 406.1 of the Civil Code of the Russian Federation.
3. To satisfy the requirements, it is necessary that the terms of the agreement clearly indicate that the parties have concluded an agreement on compensation for losses. In case of ambiguity - the provisions of Art. 406.1 of the Civil Code of the Russian Federation are not applicable.
4. The court concluded, on the basis of the interpretation of the terms of the shareholder agreement in their interconnection, that its provisions are in fact exactly the agreement of the parties on compensation for financial losses.
5. Having concluded the agreement, the defendant agreed with all its conditions, including the distribution of risks of adverse consequences in the performance of this agreement.
6. The agreement is concluded by the parties in the required form, the procedure for determining the amount of losses has been established, the circumstances in which losses must be compensated, the defendant must pay the plaintiff the loss.
Comments:
1) The courts adopted reasonable judicial acts based on the provisions of the Civil Code of the Russian Federation and the prevailing judicial practice, which was not taken into account by the defendant.
2) The possibility of compensation for losses does not depend on the fact of violation of obligations and is not provided for in Art. 12 of the Civil Code of the Russian Federation by the mechanism of protection of law, i.e. does not apply to measures of civil liability, the establishment of a civil offense is not required. This article 406.1 of the Civil Code differs from the norms of Art. 15 and 393 of the Civil Code of the Russian Federation.
3) Compensation is possible if losses are incurred now or there is a possibility of their subsequent incurrence. To recover, it will be necessary to provide evidence of a causal link between the occurrence of the obligation and losses. If a party through its actions contributed to the emergence of circumstances in respect of which compensation is provided, that is, abused the right, such a circumstance is not occurred.
4) By entering into an agreement, participants must provide for reimbursement terms. The court has not been granted the right to change the amount of compensation, the exception is cases when the party to the transaction through its actions contributed to an increase in the amount of losses.
5) One of the main conditions for the agreement to work - its wording must be clear, explicit and unambiguous, otherwise the norms of Art. 406.1 of the Civil Code should not apply.
6) Compensation does not depend on the nature of the transaction, compensation is possible even if it is challenged in the future (unless otherwise provided in the agreement).
7) Reimburse losses under Art. 406.1 of the Civil Code of the Russian Federation, regardless of other measures of responsibility, or together with them, compensation provides the opportunity to achieve the result that the parties expected when signing the contract. The provisions of the article provide an opportunity to compensate for losses resulting from the peculiarities of the Russian market economy with its instability, as well as the risks of doing business.
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