Losses are recognized as negative property consequences that arise in connection with the violation of the rights of the entity. They act as an integral element of the composition of unlawful behavior, if its result was their infliction. Let us further consider what losses are in the form of real damage.
General information
In civil law, losses are an objective condition and a measure of responsibility. This allows them to be fully compensated. The collection of real damage, thus, helps to restore the property status of the victim, bringing it to its original condition (before the violation).
Definition
The Civil Code refers to losses as expenses that an entity whose rights have been violated has incurred or will have to incur in order to restore its property status. They are also called damage or loss of value or lost profits that could have come to a person under normal conditions of turnover, if his interests had not been infringed. This definition is contained in Art. 15 code. Thus, the legislation sets aside real damage and lost profits.
Unearned income
Real damage and loss of profit have a number of distinctive features. The most complete information about unearned revenues is stated in the plenary Decree of the Armed Forces No. 25 of 06.23.2015. The document states that, within the meaning of 15 as lost profits should be recognized as unreceived profits, which would increase the mass of property of the entity whose right was violated if there were no unlawful behavior. Since we are talking about unearned income, when resolving cases concerning its reimbursement, it must be borne in mind that its calculation, which the plaintiff provides, is usually approximate and differs in probabilistic nature. This circumstance cannot in itself act as a basis for refusing to accept the application. If a person who has violated the plaintiff’s right has received income in connection with his illegal behavioral acts, the victim has the right to demand compensation, along with other losses for lost profits, in an amount not less than this income. Determining the lost profit, the court must take into account not only the potential income, but also the costs that are necessary to obtain them. In case of failure to provide a calculation of costs, compensation may be refused.
Real damage: Civil Code of the Russian Federation
In accordance with Art. 393 of the code, the entity must compensate the creditor for losses resulting from non-fulfillment or improper fulfillment of the terms of the transaction. Corresponding obligations arise from the contract in connection with the infliction of harm, as well as on other grounds provided for in the legislation. The latter are indicated in Art. 8 GK. The grounds for the occurrence of obligations, in particular, include acts of state bodies and local authorities, decisions of assemblies, legal events, with the onset of which regulatory acts link the appearance of civil law consequences, and so on.
Features of evidence
When sending an application with a request to compensate for losses (real damage), the plaintiff must provide materials confirming:
- The wrongfulness of behavior.
- The fact of the occurrence of harm and its magnitude.
- The relationship between actions / inaction and the consequences.
The volume and type of evidence that the plaintiff will have to provide will depend on what exactly the real damage consists of: lost or damaged property, certain expenses were incurred, and so on. An explanation of this is given in the Decree of the Supreme Court No. 6/8 of 1.07.1996. In paragraph 10 of this document it is said that the real damage includes not only the actual costs incurred by the victim, but also the costs that he will incur for restoration of their violated rights. These circumstances must be taken into account when resolving cases related to the presentation of claims for damages. The need for costs constituting real damage must also be supported by calculations and other evidence. The latter may be an estimate of the costs necessary to eliminate the shortage of products, an agreement establishing liability for default, and so on.
In the process of proving the size and the fact of occurrence of harm, it is necessary to take into account the provisions of paragraph 49 of the above resolution. In accordance with them, real damage is understood as the expense that will be incurred by the injured in kind. So, if the violated right is supposed to be restored through the acquisition of certain values ​​or services / work, their value should be determined in the manner provided for in art. 393, paragraph 3 of the Code, and in those cases when, at the date of the presentation of the claim or decision, the actual expenses were still not incurred by the victims.
Important point
According to paragraph 3 of Art. 393 of the Code, unless otherwise provided by law, other regulations or an agreement, when determining the amount of losses, the prices that existed in the place where the obligation was to be performed should be taken into account on the day of voluntary repayment of the creditor's claims by the debtor. If the latter did not happen, then the value in force on the day the application was submitted to the court is taken into account. Given the circumstances, the authorized authority can satisfy the claim for compensation for losses, based on prices existing at the date of the decision.
Reimbursement amount
The person bringing the claim may demand from the violator to compensate for the real (material) damage in full if the law or contract does not provide for a smaller amount. This rule must be considered in conjunction with Art. 400 Civil Code. According to the norm:
- For certain obligations, including those related to certain types of activities, the law may establish a restriction on the full compensation of losses.
- An agreement to reduce the debtor’s liability under accession agreements and other acts in which the lender is an individual acting as a consumer is considered null and void provided that the amount of liability is determined by the rules or it is concluded before circumstances that entail negative consequences for non-performance or improper performance of duties .
Examples
The following cases are established in the legislation when the creditor’s right to demand from the debtor to compensate for direct real damage is completely limited:
- Art. 78 of the Civil Code. The assignee (heir) of a member of a full partnership is liable for the obligations of the association to third parties, for which under Art. 75, p. 2, the participant who had dropped out of it would be responsible within the limits of the transferred property.
- In accordance with Art. 354 of the Merchant Shipping Code, the liability of the shipowner and rescuer is limited by the requirements established by the code in Art. 355.
- If a penalty is provided for improper performance or non-performance of an obligation, real damage shall be compensated in the part not covered by it. Various cases may be defined in law or contract. For example, it is allowed to recover only forfeit, but not losses, when a claim for damages may be presented in full over it, as well as when one or the other may be compensated at the option of the victim.
Nuances
It should be noted that interest on the use of borrowed funds always has an offsetting character. This means that the real damage of the Civil Code can be compensated only in the part that is not covered by them. This provision is established by paragraph 2 of Art. 395 of the Code, as well as paragraph 50 of the Resolution of the Armed Forces No. 6 and the Plenum of the Supreme Arbitration Court of July 1, 1996 No. 8. The real damage incurred by the organization or citizen in connection with unlawful actions / omissions of state, local authorities or employees of these structures in including the publication of a legal act contrary to the norms, is subject to compensation by the Russian Federation, the constituent entity of the Russian Federation or the municipality. This requirement is contained in Art. 16 codes.
Arbitrage practice
An authorized body canceled previous decisions in favor of the plaintiff, demanding compensation for real damage and lost revenue under a repurchase agreement. The court indicated that the seller-creditor was unable to prove the occurrence of financial losses that occurred when the debtor did not fulfill obligations related to the return of securities. Thus, the refusal to satisfy the application was justified by the failure to submit supporting documents.
The plaintiff requested to compensate for the real damage that arose during the improper storage of property that was seized by the executive federal body. The application was satisfied, since the transfer of values ​​does not exempt the state from liability for losses incurred if the authorized structure did not ensure the safety of things. The real damage was calculated by the plaintiff in the form of the difference between the purchase value and the actual sale price of the damaged product. The applicant determined the non-received income in accordance with the selling value of the goods of appropriate quality existing in the market. At the same time, transportation and procurement costs and the purchase price were deducted.
The following example concerns the courts inadequately assessing the defendant's arguments about the causal connection between his actions and the occurrence of negative consequences in the form of harm to the plaintiff. In accordance with the technical conclusion, the cause of the collision of the diesel locomotive and the wagons, as a result of which the applicant suffered real damage, indicates the presence of violations in the actions / omissions of the defendant and the customer. The latter under the terms of the contract accepted the obligation to give instructions on the use of the locomotive. Under the circumstances, decisions made in the case cannot be considered legal. In this regard, they are subject to cancellation, and the case file - referral for re-examination to the first instance to study the stated requirements, identify the actual events of the incident and evaluate the evidence provided.
Other cases
In a cassation appeal, the applicant, being a bankruptcy trustee, refers to the impossibility of establishing the amount of damage. As a justification, the subject cites the fact that the contract in which the participant in the shared construction acts as the second party has not been terminated. The cassation instance does not accept this argument, since the Federal Law "On Bankruptcy" does not establish a ban on establishing the amount of losses in case the entity has not refused to comply with the terms of the transaction. In addition, under Art. 201.6 of the said law were amended. With their account, construction participants can attend lender meetings and have the number of votes determined in accordance with the amount paid to the developer under an agreement providing for the transfer of housing or the cost of property provided to the service company, as well as the amount of losses in the form of real damage. It is established by art. 201.5, paragraph 2. All of these facts taken together indicate that the existence of requirements for the transfer of premises and an undisclosed contract is not considered an obstacle to determining the amount of real damage.
It is worth saying that disputes about compensation for losses are often related to real estate. For example, in Art. 161, part 1 of the LC, it was established that management in an apartment building should provide safe and favorable conditions for citizens to live, keep the common property in good condition, resolve issues related to its operation, and provide the provided communal services.
The plaintiff sent a statement to the court for compensation for damage resulting from an accident in the cold water pipeline. The court examined the submitted materials. Subject to the circumstances, the authorized instance satisfied the claim of the applicant by imposing a penalty on the management company.
Conclusion
Judicial practice shows that disputes about compensation for real damage and lost profits are often considered by authorized instances. The main difficulties in the proceedings arise at the stage of collecting and providing evidence substantiating the positions of the parties. At the same time, it is in the interests of each participant in the conflict to bring the maximum number of arguments in their favor. Of course, they must be obtained legally.
Experts recommend paying special attention to calculations. Calculations must be made not only for real damage, but also for the amounts that are supposed to be spent on restoration of rights. Equally important is the accuracy of calculating lost profits.
At the same time, it is worth saying that many disputes do not reach the court, since the parties manage to resolve everything peacefully. Experts recommend, if circumstances permit, to first send a claim to the entity that has violated its obligations. It should indicate the illegality of actions / omissions, as well as determine the amount of compensation and the period in which it should be provided. If in this way it was not possible to resolve the conflict, then you should contact the court.