Recovery of lost profits under the Civil Code of the Russian Federation (Articles 15, 393) in practice is a rather complicated process. The problems are mainly related to the lack of a general calculation formula. Next, we consider what is considered a lost profit, what conditions for its compensation are established by law.
Definition
It is revealed in Art. Civil Code of the Russian Federation. According to clause 2 of the norm, lost profits are recognized as unearned profits that could have been received by the entity under normal conditions of circulation if his interests and rights had not been infringed and violated.
Article 15 of the Code establishes the right of a person to demand full compensation for losses caused by the unlawful behavior of another entity. Compensation in full means that the creditor will be placed in the position in which he would have been if the obligation had been repaid on time and in due course. This rule is established by Article 393 of the Civil Code.
Loss of profit is calculated taking into account prices in force at the time of voluntary repayment of the obligation in the place where it was to be performed. In case of evasion of such execution, the prices that existed on the day the claim is filed are taken into account.
In determining the amount of lost profit, the sufficiency of measures taken by the creditor to make a profit (reduce costs), as well as the preparations made for this, are assessed.
Explanations
Modern legislation provides a clear enough protection of the interests of property, regardless of its owner. And it can be both a citizen, and the organization or the state as a whole.
One of the effective tools for protecting the rights of the owner is the opportunity to demand compensation from the debtor for losses caused to the creditor as a result of violation of his rights.
Losses are formed not only from real harm, but also from lost profits. The real damage is the physical loss of property, money, etc. According to article 15 of the Civil Code of the Russian Federation, lost profits are lost or lost profits.
In other words, real damage involves a deterioration in property or financial position. The presence of lost profits indicates that the expected improvement in the position of the person has not occurred.
For example, the contractor violated the terms of the contract for the repair of the vehicle and did not deliver the car to the owner on time. The owner, in turn, cannot provide services for passenger transportation for a certain time and, therefore, has not learned the income expected from this activity. These losses are lost profits.
Composition
As established 15 Art. GC, lost profits are lost income. All other losses attributed by the legislator to real damage.
However, it should be noted that in order to satisfy the claim for compensation for losses, the applicant will have to prove not only the direct loss of profit, but also some other circumstances.
So, the prerequisites for reimbursement of lost profits are:
- The presence of a violation of rights.
- The relationship between the consequences and unlawful actions of the debtor. That is, failure to comply with the terms of the contract should result in losses.
Violation fact
As a rule, we are talking about the failure to fulfill any obligations. Meanwhile, the existence of contractual relations cannot be considered an indispensable condition. The obligation to compensate for the loss of profit established in the above articles of the Civil Code of the Russian Federation may result from harm to health / life.
For example, a person could not receive income as a result of bodily harm. Accordingly, the indicated losses (unearned profit) will be a lost profit.
Important point
In order for the claims for loss compensation to be satisfied, the plaintiff will have to prove that the receipt of income was real. This means that in other circumstances, in the absence of violations by the debtor, profit would indeed have been received.
As part of the evidence, the applicant will have to argue the possibility of conducting entrepreneurial or, for example, production activities in the declared volume. In other words, he will have to report on the measures he has taken to make a profit, as well as on the preparations made by him for this.
The relationship between violation and consequence
Its establishment is carried out according to two criteria:
- The right was violated before the loss of profits.
- The debtor's failure to comply with the terms of the transaction led to negative consequences for the creditor.
Analyzing the provisions of Articles 393 and 15 of the Civil Code articles on lost profits , we can conclude that the creditor has, in fact, one option to prove to the court that he has taken measures to reduce losses. These measures must be real and reasonable. Simply put, the creditor assumes the performance of obligations not fulfilled by the debtor. He can assign them to third parties if necessary. The expenses incurred by him in connection with this, he naturally lays on the debtor.
For example, a person independently repairs a car that the debtor was supposed to carry out, but did not. The debtor is obliged to compensate for material costs and other expenses.
However, it also happens that a creditor cannot take appropriate measures. In this case, he must prove the impossibility of taking appropriate action.
Formula
Unfortunately, it is not established by any article of the Civil Code. Lost profits are described in detail only in Art. 15. In all other provisions, there is only mention of it. General collection rules are provided by 393 Codex norms. Based on the definition and the procedure fixed by the indicated articles of the Civil Code, the lost profit can be calculated according to the following formula:
HC = DR - IR - NI, in which:
- income from the sale of unreleased products;
- implementation costs - IR;
- tax costs - HP.
As follows from the above article of the Civil Code, the lost profit should be determined taking into account the costs that the creditor should have incurred if the terms of the transaction were not violated, and, accordingly, the obligations of the debtor would have been fulfilled.
This formula can be applied, for example, in the event of losses due to non-delivery of consumables. Based on the provisions of Articles 393 and 15 of the Civil Code, lost profits should be calculated on the basis of the cost of the finished product, minus the costs of raw materials, their delivery, production, taxes, and other costs.
Arbitrage practice
As noted at the beginning of the article, the absence of a general formula or calculation rules covering the most common cases of recovering lost profits creates various problems in the settlement of disputes. In this regard, the judicial practice in such cases is highly controversial.
The authorities did not develop a unified approach to resolving disputes regarding the recovery of lost profits. Courts interpret the concepts of “reasonable measures to reduce losses” and “reasonable costs” in different ways. As a result, various, often conflicting, decisions are made.
Meanwhile, there is a general trend: lawsuits to recover lost profits are rarely satisfied in practice. Often, the stated requirements are significantly reduced.
However, it is worth noting that in many cases the difficulties are associated not so much with the gaps in the norms or the vagueness of the conditions for proving the fact of loss of profit, as in the passivity of the interested parties themselves. Due to the lack of legal awareness, lenders themselves do not take any measures to uphold their position.
As practice shows, not many plaintiffs can provide the court with an economic justification for the alleged income and lost profits.
Conclusion
Before the statement of claims for compensation for losses, in particular, expressed in unearned income, the first regulatory act to be carefully studied is the Civil Code. You need to know the nuances associated with the reimbursement process, the specifics of the losses to be recovered.
For greater persuasiveness, it is necessary to calculate the expected profit under ordinary conditions, and this justification should be provided to the court along with other evidence.