Reimbursement of the difference between the price of the goods. Proving when collecting damages in the form of the difference between the price established in the contract and the current value at the time of its termination
1. Recovery of damages in the form of the difference between the value established in the contract and the price for the transaction made in exchange under clause 1 of Art. 524 Civil Code of the Russian Federation
The Civil Code of the Russian Federation does not contain requirements for the moment of conclusion and execution of a new transaction. However, judicial practice indicates the significance of these actions for the recovery of damages under paragraph 1 of Art. 524 Civil Code of the Russian Federation. It is also unclear from the article whether it is necessary to prove that the new transaction is concluded to cover losses from the previous transaction.
1.1. Conclusion from judicial practice: The conclusion of a new supply contract before the termination of the current contract prevents the court from recognizing the new contract as completed in place of the current one.
Judicial practice:
Determination of the Supreme Arbitration Court of the Russian Federation dated November 8, 2007 N 14446/07 in case N A60-30796/06-C7
"...The supply contract dated August 16, 2005 N 2005-08/002/B-416 was terminated by agreement of the parties. Taking into account part 1 of Article 450 of the Civil Code Russian Federation(hereinafter referred to as the Code), the court concluded that an agreement to terminate contractual obligations was reached between the parties on April 14, 2006.
A new contract for the supply of equipment was concluded by the plaintiff with a third party on April 10, 2006, that is, during the validity period of the previously concluded contract.
Under these circumstances, guided by part 1 of Article 524 Civil Code Russian Federation, the court recognized the claim made by OJSC "Tagmet" for the recovery of damages on the basis specified by it not subject to satisfaction..."
Resolution of the Federal Antimonopoly Service of the West Siberian District dated October 4, 2007 in case No. F04-6944/2007 (38904-A27-28)
"...The arbitration court correctly noted that the agreement dated December 18, 2006 No. 1 for the supply of products not shipped by the defendant was concluded by the plaintiff with a third party - Belovsky Elevator OJSC, in violation of the rules of paragraph 1 of Article 524 of the Civil Code of the Russian Federation - before termination agreement dated October 13, 2006 until the end of the product shipment deadlines established by the parties in the said agreement..."
FAS Resolution North Caucasus District dated 10/05/2009 in case No. A53-27338/2008
"...The plaintiff believes that he suffered losses in the amount of 1,049,755 rubles, which is the difference between the price of wheat specified in contract No. 130 DA (4,150 rubles per ton) and the price in the contract concluded with ATEKS LLC ( 2,400 rubles per ton), due to the defendant’s unilateral refusal to fulfill obligations to sample the remaining 599.86 tons of wheat in accordance with the terms of the agreement dated September 4, 2008 No. 130DA and Appendix No. 1 to it. This circumstance served as the basis for the plaintiff’s communication in arbitration court with this claim.
Part 2 of Article 524 of the Civil Code of the Russian Federation establishes that if, within a reasonable period after termination of the contract due to a breach of obligation by the buyer, the seller sold the goods to another person at a price lower than that stipulated by the contract, but at a reasonable price, the seller may make a claim to the buyer for compensation for losses in in the form of the difference between the price established in the contract and the price of the transaction made in exchange.
Within the meaning of this provision of the Code, the condition for compensation for losses due to violation of obligations by the buyer is the conclusion by the supplier of a new contract at a lower price only after termination of the previously concluded one.
The date of termination of the contract by virtue of paragraph 4 of Article 523 of the Code is associated with the fact of receipt of notice of cancellation of the contract.
The Court of Appeal reasonably found that the postal receipts No. 14548 and No. 14547 presented by the plaintiff in the “address” column, which are listed as “Rostov region, Rostov-on-Don,” do not confirm the fact of receipt by the defendant, whose legal address is “Republic of Kalmykia, Elista” , City Shakhmat ter., No. 8.1", notification of the plaintiff dated November 15, 2008 No. 175 about the unilateral refusal to fulfill the contract, as required by Part 4 of Article 523 of the Civil Code of the Russian Federation.
Considering this circumstance, as well as the fact that the defendant denies the fact of receiving the claim dated October 31, 2008 N 148 and notice dated November 15, 2008 N 175 about the unilateral refusal to perform the contract, the appellate court came to the rightful conclusion that the plaintiff, in accordance with Article 65 of the Arbitration Procedural Code of the Russian Federation did not prove the fact of unilateral termination of the contract before the sale of the disputed goods to a third party.
A person filing a claim for damages must prove the existence of losses, their size, the illegality of behavior and the guilt of the person who caused the losses, and the causal connection between the violation and the resulting losses. Since the plaintiff has not proven the presence of all elements of the composition necessary to recover damages, the courts’ conclusion that there are no legal grounds for satisfying the claim is correct and corresponds to the norms of substantive law..."
Resolution of the Federal Antimonopoly Service of the Ural District dated March 24, 2009 N F09-1467/09-C5 in case N A71-5071/2008-G29
"...As established by the court, on October 1, 2007, an agreement for the supply of petroleum products No. 148-RU/2007 was concluded between the company "ASPEK" (supplier) and the company "RUTEK" (buyer), in accordance with which the defendant undertook to supply oil products, and the plaintiff - accept and pay for petroleum products on the terms stipulated by the contract and additional agreement to him. Quantity, nomenclature, price, terms, terms of payment and delivery of products are determined in additional agreements to this agreement.
When applying to the arbitration court with a claim for recovery of 2,149,605 rubles. 49 kopecks losses, the plaintiff indicated that due to the defendant’s violation of its obligations to supply products under contract No. 148-RU/2007 dated October 1, 2007, he was forced to urgently purchase undelivered goods from other suppliers: the open joint-stock company Salavatnefteorgsintez (hereinafter referred to as the Salavatnefteorgsintez company ") and the limited liability company "ATEK" (hereinafter - the company "ATEK") in order to fulfill obligations to the buyer - the limited liability company "Premier" (hereinafter - the company "Premier")...
At the same time, the courts of first and appellate instances, assessing in accordance with Art. 71 of the Arbitration Procedural Code of the Russian Federation, together with the terms of the supply agreement dated October 1, 2007 N 148-RU/2007, the obligations of the parties and the submitted agreements for the supply of petroleum products concluded by the plaintiff with the Salavatnefteorgsintez company, the ATEK company, as well as letters dated October 31, 2007 N 01-01/1306-US, dated 01.11.2007 N 01-01/1310-US and the additional agreement dated 01.11.2007, concluded by the plaintiff with the ATEK company, made a reasonable conclusion that the plaintiff had not proven that he had entered into any transactions in exchange the supply agreement dated October 1, 2007 No. 148-RU/2007, not fulfilled by the defendant.
As correctly established by the courts, the named supply contracts with the Salavatnefteorgsintez company and the ATEK company were concluded by the plaintiff on 10/24/2007 and 10/26/2007, that is, before the expiration (11/01/2007) of the deadline for the defendant to fulfill its obligation to supply products in accordance with the additional agreement dated October 1, 2007 No. 1, which contradicts the provisions of Art. 524 of the Civil Code of the Russian Federation. In addition, the presented contracts initially indicated higher prices for the supplied products than the price established in the supply agreement dated 01.10.2007 N 148-RU/2007, the plaintiff ordered the shipment of fuel oil in quantities significantly exceeding the volume of underdelivery from different suppliers and according to different prices.
Taking into account the foregoing, the courts came to a reasonable conclusion that there was no evidence in the case materials indicating the existence of a cause-and-effect relationship between the defendant’s failure to fulfill obligations under the supply contract and the plaintiff’s losses, as well as the plaintiff’s taking measures to prevent losses in the form of lost profits or reduce them size (Article 65 of the Arbitration Procedure Code of the Russian Federation)..."
Resolution of the Federal Antimonopoly Service of the Ural District dated September 3, 2008 N F09-6346/08-C5 in case N A76-26592/2007-25-915/216
"...As established by the court during the consideration of the case, under the agreement dated 04/09/2007 N 09-04-2007/GA, the company "TD "BOVID" (supplier) assumed the obligation to supply the company "Ufaleynickel" (buyer) with a DZ-98 motor grader V.00110 (with bulldozer and part-rotary blades) at a price of RUB 3,270,000.
Since the motor grader was not delivered within the period stipulated by the contract, the Ufaleynickel company turned to the supplier on August 13, 2007 with a request to return the advance payment amount.
Believing that the improper fulfillment by the company "TD "BOVID" of the obligation for timely delivery forced the buyer to enter into an agreement for the supply of a motor grader with another supplier - a closed one joint stock company VPK "Chelprom" at a higher price, the company "Ufaleynickel" filed a lawsuit to recover damages and interest from the defendant for the use of other people's funds.
Having assessed taking into account the provisions of paragraph 1 of Art. 450 of the Civil Code of the Russian Federation, the documents presented in the case, the arbitration court correctly established that the supply contract dated 04/09/2007 N 09-04-2007/GA was terminated by agreement of the parties on 08/20/2007 (clause 3 of Article 438 of the Civil Code of the Russian Federation).
A new contract for the supply of equipment was concluded by the plaintiff with the closed joint-stock company VPK Chelprom on August 15, 2007, that is, during the validity period of the previously concluded contract.
Under these circumstances, guided by paragraph 1 of Art. 524 of the Civil Code of the Russian Federation, the court rightfully recognized the claim made by the Ufaleynickel company for the recovery of damages on the basis specified by it as not subject to satisfaction..."
1.2. Conclusion from judicial practice: In order to charge the supplier the difference between the price under the supply contract and the cost of the replacement transaction, it is necessary to execute such a transaction.
Judicial practice:
Determination of the Supreme Arbitration Court of the Russian Federation dated October 24, 2007 N 13004/07 in case N A63-8060/2006-C1
“...In the statement of claim, Alliance LLC indicates that... he was forced to buy from another person... the drug "Hemodez N" at a higher price.
However, the courts found that the parties did not fulfill the supply agreement..."
1.3. Conclusion from judicial practice: To recover damages in accordance with paragraph 1 of Art. 524 of the Civil Code of the Russian Federation there is no need to prove that the transaction concluded in exchange for the unfulfilled one was aimed at covering losses.
Judicial practice:
Resolution of the Federal Antimonopoly Service of the North Caucasus District dated August 21, 2008 N F08-4857/2008 in case N A32-21684/2007-2/315
“...The plaintiff, pointing out that he suffered losses in the form of the difference between the price established in the supply contract dated May 21, 2007 No. 1, and the price for the transactions made in return, appealed to the arbitration court.
The Court of Appeal established the fact that the plaintiff entered into transactions with other persons to replace the terminated one. The purpose of these transactions to cover losses associated with the supply of Risagroprom LLC or for other purposes has no legal significance, since when collecting damages under paragraph 1 of Article 524 of the Code, the buyer must prove the fact of a transaction with another person (instead of the terminated one), conclusion such a transaction within a reasonable time, as well as the reasonableness of the price of the goods purchased under the new agreement..."
1.4. Conclusion from judicial practice: If, after termination of the supply contract, the buyer enters into a preliminary rather than a main supply contract, he still has the right to compensation for losses according to the rules of Art. 524 Civil Code of the Russian Federation.
Judicial practice:
Resolution of the Federal Antimonopoly Service of the Moscow District dated February 26, 2009 N KG-A40/583-09 in case No. A40-33189/08-52-339
"...In connection with the termination of the contract due to the violation of the supplier's (defendant's) obligation by the buyer (plaintiff), a claim was made for the recovery of damages on the basis of Article 524 of the Code...
The arbitration courts established that after termination of the contract with the defendant, the plaintiff entered into a preliminary agreement for the supply of similar goods with another person at a price of 9,800 rubles. per ton, the price of the goods includes the cost of transportation costs - 11,660 rubles.
The calculation of losses was made by the plaintiff based on data from the Chamber of Commerce and Industry of the Nizhny Novgorod Region, in whose territory the goods were transferred, the price of bitumen was 9,950 rubles. per ton as of May 4, 2008, was recognized by the court as justified for the recovery of damages.
Having discussed the arguments of the cassation appeal, the judicial panel believes that it does not contain information for the annulment of judicial acts of arbitration courts, which, when considering the dispute, established the circumstances relevant to the case, provided for in Art. 288 of the Arbitration Procedural Code of the Russian Federation there are no grounds for canceling or changing the decision and order..."
Arbitration Court Sverdlovsk region composed of judge M.V.
Artepalikhina while keeping the minutes of the court session as a secretary
court session of V. I. Sulimova, considered in open court
meeting, case No. A60-2969/2019 on the claim of VNITEP JSC (TIN 7705151026,
OGRN 1027739159106) to JSC "Research and Production Corporation"
"Uralvagonzavod" (TIN 6623029538, OGRN 1086623002190) on termination
agreement, recovery of 6,200,000 rubles,
when participating in a court hearing:
Persons participating in the case, procedural rights and obligations
explained. No challenges were filed to the composition of the court.
JSC "VNITEP" filed a lawsuit against JSC "Nauchno-
Production Corporation "Uralvagonzavod" on termination of the contract,
recovery of 6,200,000 rubles, of which: 171,455 rubles. 15 kopecks - late fees
advance payment for the period from May 11, 2017 to June 19, 2017, RUB 548,049. 53 kopecks –
fine, RUB 5,480,495 32 kopecks – losses in the form of lost profits.
The defendant received a response to the claim, in which he opposed the requirement for
the termination of the contract objects, pointing out that at present they
Arrangements have been made to provide a construction site. Also
believes that the plaintiff’s actions contain signs of abuse of rights.
In addition, it indicates the plaintiff’s failure to comply with the claim procedure in
regarding demands for payment of penalties and fines, in view of which, requests to leave
these requirements without consideration.
The plaintiff filed a motion to clarify the requirements regarding recovery
penalties, according to which, requests to recover them from the defendant in the amount of 337,963
rub. 88 kop. for the period from May 11, 2017 to June 19, 2017. In the rest of the
the claims were left unchanged.
The court also considered the petition on the basis of Art. 49 Arbitration
of the Procedural Code of the Russian Federation is satisfied.
At the preliminary court hearing, the court completed consideration of all
issues raised at the preliminary meeting, taking into account the opinion
representatives of persons participating in the trial present at the court hearing
case, the court declared the case prepared for trial.
The plaintiff received written explanations in which the previously stated
supported the arguments.
The defendant submitted an addition to the review, in which he insists that
that the plaintiff has not proven a causal relationship between the perpetrators
actions of the defendant and the losses incurred.
The defendant also filed a motion to order a forensic examination,
asks the experts to pose the following questions:
1. Compliance of the supplied equipment with the requirements of the technical specifications.
1.1. Determine the completeness of the supplied equipment. Currently, the equipment is located on the territory of JSC Research and Production Corporation Uralvagonzavod in its original factory packaging.
1.2. Establish compliance with the technical characteristics of the equipment
requirements of technical specifications:
A) By comparison with the information specified in the technical
equipment documentation;
B) By conducting tests to establish actual
technical characteristics of the equipment and the ability to perform tasks,
established in the technical specifications.
The defendant also explained that the examination is necessary to determine
the cost of installation and commissioning works, as well as the cost
training of personnel of JSC "Research and Production Corporation"
"Uralvagonzavod" in accordance with the requirements of the concluded contract.
At the same time, the defendant did not provide evidence of making
cash on the deposit of the court, in view of which, the petition was accepted by the court to
At this court hearing, the defendant supported the petition for
appointment of the examination, the defendant raised objections.
The court refused to satisfy the petition on the basis of Art. 82
Arbitration Procedural Code of the Russian Federation, since it is not
established the appropriate grounds for ordering an examination on
the defendant's stated arguments.
At this court hearing, the parties supported the stated
demands and objections.
Having considered the case materials, the court
Installed:
JSC "Research and Production Corporation "Uralvagonzavod" (plaintiff)
according to paragraph 7 of Protocol N 0462100000216000124-3 Summing up
electronic auction N 0462100000216000124 dated January 30, 2017 (Appendix
No. 7) determined VNITEP CJSC (defendant) as the winner,
who proposed the contract price in the amount of 27,402,476 rubles. 59 kopecks
The final contract between the parties is concluded
As part of the execution of the contract, the defendant delivered
equipment based on the delivery note dated June 16, 2017. No. 32, product
accepted by the plaintiff on July 7, 2017.
Referring to the defendant’s failure to fulfill the terms of the contract
obligations to prepare for the transfer to the plaintiff of the construction site for
installation of equipment supplied by the plaintiff (clause 3.1. Appendix No. 5 (clause 6.5.
Contract), clause 3.2. Appendix No. 5, clause 2.2. Appendix No. 3), the plaintiff appealed to
court with this claim.
The court considers the claims to be satisfied based on
from the following.
the evidence presented in the case file is complete and comprehensive; contested
the judicial act was adopted with the correct application of substantive law, conclusions,
circumstances and available evidence.
Based on the above, based on the actual circumstances of the case, taking into account
evaluation of the evidence presented, the arbitration court of appeal comes to
conclusion that the court of first instance established all the factual circumstances regarding
case, the rules of substantive and procedural law were correctly applied,
legal and justified decision, and therefore the arbitration court of appeal
there are no grounds for canceling or changing the decision of the Arbitration Court
The rules of procedural law when resolving a dispute were applied correctly by the court,
violations of procedural norms, entailing the unconditional cancellation of judicial acts (part 4
Article 270 of the Arbitration Procedural Code of the Russian Federation), from
no case materials are seen.
Arbitration Procedural Code of the Russian Federation.
Judge L.V. Afanasyeva
3.1. Conclusion from judicial practice: When collecting damages in the form of the difference between the price under the contract and the current value at the time of its termination in accordance with Part 3 of Art. 524 of the Civil Code of the Russian Federation, it is necessary to prove the fact of termination of the contract and the current price of the goods.
Judicial practice:
Determination of the Supreme Arbitration Court of the Russian Federation dated October 24, 2007 N 13004/07 in case N A63-8060/2006-C1
"...When collecting damages, the buyer must prove the fact of termination of the contract on the basis provided for in paragraph 1 of Article 524 of the Code, as well as the current price of the goods..."
3.2. Conclusion from judicial practice: When collecting damages in the form of the difference between the price established in the contract and the current value at the time of its termination in accordance with clause 3 of Art. 524 of the Civil Code of the Russian Federation, it is necessary to prove that the party to the contract took measures to conclude a new transaction.
Judicial practice:
Determination of the Supreme Arbitration Court of the Russian Federation dated 06/08/2010 No. VAS-7222/10 in case No. A40-28594/09-55-279
"... Between the defendant (supplier) and the plaintiff (buyer) an agreement for the supply of petroleum products dated 01.02.2008 N 2008-178/03zhd was concluded, according to which the defendant undertook to supply petroleum products, and the plaintiff - to accept and pay for them.
The defendant returned the funds to the plaintiff (undisbursed advance) in the amount of 5,550,085 rubles and refused to supply the underloaded goods, and therefore the plaintiff terminated the supply agreement.
Considering that the defendant’s improper fulfillment of obligations resulted in losses, the plaintiff filed this claim in court.
According to paragraph 3 of Article 524 of the Civil Code of the Russian Federation, if after termination of the contract on the grounds provided for in paragraphs 1 and 2 of this article, a transaction has not been made to replace the terminated contract and there is a current price for this product, the party may make a claim for damages in the form of the difference between the price , established in the contract, and the current price at the time of termination of the contract.
In satisfying the claim, the courts proceeded from the confirmation of the fact of improper performance of the contract by the defendant, termination of the contract due to a significant violation of its obligations, proof of the amount of losses, as well as the plaintiff’s taking measures to complete a transaction in return for the terminated contract and were guided by paragraph 3 of Article 524 of the Civil Code of the Russian Federation.
Violations of uniformity in the application and interpretation of the rules of law, including Article 524 of the Civil Code of the Russian Federation, were not allowed by the courts..."
Similar judicial practice:
Acts of the Supreme Courts
Determination of the Supreme Arbitration Court of the Russian Federation dated February 19, 2008 N 2397/08 in case N A03-3957/07-6
"...Taking into account the provisions of Part 3 of Article 524 of the Civil Code of the Russian Federation, the court noted that in order to apply this norm, the plaintiff must provide evidence confirming the fact that he has taken measures to complete a transaction in return for the terminated contract..."
West Siberian District
Resolution of the Federal Antimonopoly Service of the West Siberian District dated December 18, 2007 in case No. F04-8105/2007(40375-A03-28), F04-8105/2007(40796-A03-28)
"...Refusing to satisfy the plaintiff's demands for the recovery of 285,268 rubles 40 kopecks in damages in the form of the difference between the product price established by the contract and the current price, the arbitration court, with reference to the provisions of Articles 393, 524 of the Civil Code of the Russian Federation, rightfully pointed out the absence evidence that the plaintiff completed a replacement transaction to replace the terminated one, as a result of which he suffered losses in the declared amount, came to the rightful conclusion that Termiz LLC had not proven both the occurrence of its losses and their size..."
Moscow district
Resolution of the Federal Antimonopoly Service of the Moscow District dated February 12, 2010 N KG-A40/37-10 in case No. A40-28594/09-55-279
"...The defendant, by payment order No. 345 dated January 26, 2009, returned to the plaintiff the money for the goods and its transportation in the amount of 5,550,085 rubles and by letter No. 718 dated January 27, 2008, refused to supply the underloaded volume of goods. The plaintiff, by letter dated January 28, 2009 . N 037/09, received by the Defendant on 01/30/2009, terminated the supply agreement N 2008-178/03 railway dated 02/01/2008.
In exchange for the terminated contract, Eurobitum LLC took measures to purchase BND 60/90 bitumen from another supplier, for which it entered into a preliminary agreement No. 30/01/09-15 dated January 30, 2009 for the supply of bitumen with MashTrans LLC. However, the main agreement for the supply of bitumen was not concluded with this supplier due to his refusal to conclude an agreement due to rising prices for bitumen, which is confirmed by letter from MashTrans LLC dated 02/11/2009 N 263/02/09.
Taking into account what has been established and based on an assessment of the evidence available in the case materials, applying the provisions of Art. Art. 463, 523, paragraph 2 of Art. 450 of the Civil Code of the Russian Federation, the court came to the conclusion that the defendant’s improper fulfillment of the obligations stipulated by the agreement dated 02/01/2008 resulted in the plaintiff’s losses associated with the need to purchase bitumen at a higher price due to the increase in the price of the product, which was caused by general increase in prices for goods in this group.
According to clause 3. Art. 524 of the Civil Code of the Russian Federation, if after termination of the contract, due to the seller’s violation of its obligations, a transaction has not been made to replace the terminated contract and there is a current price for this product, the party may make a claim for compensation for losses in the form of the difference between the price established in the contract and the current one price at the time of termination of the contract.
The court determined that the current cost of one ton of BND 60/90 bitumen in the Republic of Bashkiria as of January 30, 2009, according to a certificate from the Chamber of Commerce and Industry of the Republic of Bashkortostan, is 4,800 rubles, which was not refuted by the defendant.
Taking into account n. 3.1.1.5 of the contract and the price of one ton of bitumen BND 60/90, specified in Protocols N 000000001986 and N 000000002015, and the defendant’s failure to supply 231.256 tons and 1365.922 tons of petroleum products under the said Protocols, respectively, the court found that the plaintiff suffered losses in the amount of (4800 - 1200) x 231,256 tons = 832 521 rubles 60 kopecks and (4800 - 1300) x 1365.922 Tony = 4 780 727 rubles, total - 832 521 rubles 60 kopecks + 4 780 727 rubles = 5 613 248 rubles 60 kopecks.
The defendant did not make any claims to the presented calculation. However, he believes that the plaintiff, in violation of the requirements of Art. 15 of the Civil Code of the Russian Federation, did not document expenses in the amount of 5,613,248 rubles. 60 kopecks, and also did not provide the court with evidence that he would have to make the specified expenses.
This argument of the defendant has been tested by the courts and has not been justifiably accepted.
In accordance with the provisions of this article, if a transaction to replace the terminated contract has not been completed and there is a current price for this product, the party may make a claim for damages in the form of the difference between the price established in the contract and the current price at the time of termination of the contract.
By virtue of Art. 65 of the Arbitration Procedure Code of the Russian Federation, presenting the requirements provided for in Part 3 of Art. 524 of the Civil Code of the Russian Federation, the plaintiff must prove that he took measures to complete another transaction to replace the terminated one.
Since the plaintiff presented to the court the appropriate evidence confirming that he had taken appropriate measures to carry out, in exchange for the transaction terminated at the current price for a similar product at the place where the goods were transferred, as a result of which he suffered losses in the declared amount, the court, in the opinion of the panel, rightfully assessed these circumstances, in including the preliminary agreement No. 30/01/09-15 dated January 30, 2009 for the supply of bitumen with MashTrans LLC presented by the plaintiff, a letter of refusal of MashTrans LLC to enter into an agreement dated February 1, 2009 No. 263/02/ 09 and a certificate from the Chamber of Commerce and Industry of the Republic of Bashkortostan indicating the current cost of bitumen as of January 30, 2009, on the basis of which the plaintiff calculated the amount of losses, came to a reasonable conclusion that the plaintiff had proven the existence of losses and their size, and therefore justified satisfied the plaintiff's demands for damages in the amount of 5,613,248 rubles 60 kopecks..."
Volga region
Resolution of the Federal Antimonopoly Service of the Volga District dated December 24, 2012 in case No. A12-8059/2012
"...The limited liability company "Volgograd Agro-Industrial Company" (hereinafter referred to as the plaintiff) appealed to the Arbitration Court of the Volgograd Region with statement of claim to the limited liability company "VolgogradAgro" (hereinafter - the defendant), with clarification of the requirements in accordance with Article 49 of the Arbitration Procedure Code of the Russian Federation (hereinafter - the Arbitration Procedure Code of the Russian Federation), for the recovery of 6,204,379 rubles. 69 kopecks losses, 4000 rub. debt.
By the decision of the Arbitration Court of the Volgograd Region dated July 9, 2012, the claims were satisfied.
By the decision of the Twelfth Arbitration Court of Appeal dated October 4, 2012, the decision of the first instance court dated July 9, 2012 was left unchanged.
As established by the courts and follows from the case materials, an agreement dated November 15, 2011 N 01/11/PS was concluded between the plaintiff (supplier) and the defendant (buyer), under the terms of which the plaintiff undertook to supply, and the defendant to accept and pay for, agricultural products from the 2011 harvest in the manner and on the terms provided for by this agreement and the relevant specifications to it, which are its integral part (clause 1.1 of the agreement).
Referring to the defendant's failure to fulfill his obligations to pay for the delivered goods in full and for the failure to select goods in the amount of 1246.34 tons, the plaintiff filed a claim with the arbitration court for the collection of a debt in the amount of 4,000 rubles, damages in the form of the difference between the price established in the supply agreement , and the current price at the time of termination of the contract in the amount of RUB 5,354,274. 28 kopecks, as well as 850,105 rubles. 31 kopecks costs associated with storing this product.
When resolving a dispute regarding the recovery of damages, the courts proceeded from confirmation of the fact of improper performance of the contract by the defendant, termination of the contract due to a significant violation of its obligations, proof of the amount of losses, as well as the plaintiff’s taking measures to complete a transaction in return for the terminated contract and were guided by paragraph 3 of Article 524 of the Civil Code of the Russian Federation .
According to paragraph 3 of Article 524 of the Civil Code of the Russian Federation, if, after termination of the contract due to the buyer’s violation of its obligations, a transaction has not been completed to replace the terminated contract, and there is a current price for this product, the party may make a claim for damages in the form of the difference between the price established in contract, and the current price at the time of termination of the contract.
The current price is the price usually charged under comparable circumstances for a similar product in the place where the transfer of the goods was to take place. If a current price does not exist at that location, the current price applicable elsewhere may be used and may serve as a reasonable substitute, taking into account differences in the cost of transporting the item.
The court found that the plaintiff took measures to sell buckwheat, which is confirmed by correspondence with potential buyers presented in the case materials, but the plaintiff did not sell the products.
According to the Department's letter agriculture Oryol region dated May 3, 2012 N 0106/1309, the average price of agricultural producers for buckwheat in the Oryol region in January - March 2012 was 11,385.82 rubles. per ton, which is not disputed by the defendant.
The calculation of the amount of damages determined by the plaintiff based on the volume of unselected goods and the difference in the price established by the contract and the current value was verified by the courts and found to be correct.
Under such circumstances, the judicial panel does not find any grounds for canceling the judicial acts adopted in the case, based on the materials of the case, with the correct application of the rules of substantive and procedural law..."
3.3. Conclusion from judicial practice: When collecting damages in the form of the difference between the price under the contract and the current price at the time of its termination in accordance with Part 3 of Art. 524 of the Civil Code of the Russian Federation, it is necessary to prove the fact of termination of the contract, as well as the fact that in return a transaction was not made at the current price.
Judicial practice:
Resolution of the Federal Antimonopoly Service of the West Siberian District dated August 27, 2012 in case No. A27-6805/2011
“...The cassation court considers the judicial acts regarding the refusal of SibNovoStroy LLC to satisfy claims for the recovery of additional damages and lost profits to be legal and justified.
By virtue of Part 3 of Article 524 of the Civil Code of the Russian Federation, if after termination of the contract a transaction is not made to replace the terminated contract and there is a current price for this product, the party may make a claim for damages in the form of the difference between the price established in the contract and the current price at the time of termination agreement.
The current price is the price usually charged under comparable circumstances for a similar product in the place where the transfer of the goods was to take place. If a current price does not exist at that location, the current price applicable at another location may be used and may serve as a reasonable substitute, taking into account the difference in the cost of transporting the item.
Consequently, damages in the form of the difference between the price established in the contract and the current price at the time of termination of the contract can be recovered only upon termination of the contract, failure to complete a transaction to replace the terminated one and at the current price. However, the plaintiff did not terminate the coal supply agreement with CJSC Belovskaya Mine and instead made a transaction, and therefore there are no grounds for collecting damages provided for in paragraph 3 of Article 524 of the Civil Code of the Russian Federation..."
Returnable packaging is considered returnable by default. These are boxes made of plastic or cardboard (corrugated or glued flat); polyethylene cans, barrels, flasks; fabric bags; glass containers (jars and bottles), etc. But disposable containers in most cases are considered non-returnable. It can become returnable only if this is provided for in the purchase and sale agreement (Article 517 of the Civil Code of the Russian Federation; Guidelines, approved by Order of the Ministry of Finance of Russia dated December 28, 2001.
Refund of money for furniture, compensation for price differences, compensation for moral damages
The essence of the problem is as follows: On September 24, 2010, furniture was purchased from the Store (Living room, flower stand, coffee table and shelf - all in wenge color and as a set that was supposed to be placed in one room). The furniture was purchased for personal use. The delivery time was verbally stated as 2-3 weeks.
On 09/24/2010 an advance was made, on 09/29/2010 the furniture (the shelf was not delivered) was delivered to the buyer unassembled and in original packaging, which was not damaged.
How to return the difference if the price of the purchased product has changed
Surely each of us has encountered a situation where, a few days after placing an order, the price of purchased goods decreased. Either some big sale started, a discount code appeared, or your particular product shamelessly lost in price.
What to do if such a situation happened? Just bite your elbows and reassure yourself that in the future you can save on something else.
How can a seller reflect the return of goods by a buyer in tax accounting?
From the letter of the Ministry of Finance of Russia dated June 16, 2011 No. 03-03-06/1/351, we can conclude that the difference between the selling price and the cost of goods sold can be included in the calculation of taxable profit. If the contract is terminated at the time of the buyer's claim, the return of goods is reflected as an independent business transaction. In this case, the non-operating expenses of the claim period reflect the amount of the returned payment for the low-quality goods, and the income includes the cost of the returned low-quality goods, at which it was accounted for on the date of sale.
Reflection of operations to return goods from the buyer and seller in accounting and tax accounting
The buyer and seller agreed on the delivery of the goods, shook hands - the goods were delivered, the buyer accepted it for accounting. That is, the invoice was signed without objection. However, later, by agreement with the seller, it was decided to return the goods (although there are no complaints about the quality of the goods). The only question is now how to properly formalize, take into account and calculate taxes.
In this case, the return of the goods is reflected as its normal sale (at least for tax purposes).
Letter 34542-IP
The Ministry of Regional Development of the Russian Federation reviewed the appeal of the Main Directorate for Expertise and Capital Expenditure Planning of the Bank of Russia dated August 21, 2009 No. 34-1-1-5/240 and reported the following.
Compensation for the difference between the actual cost of materials and operation of construction machines when calculating for work performed and their cost, determined using indices, can be made in accordance with the terms of the contract at an open contract price.
Order of the Ministry of Construction, Architecture and Housing and Communal Services of the Republic of Tatarstan dated September 28, 2009
“On approval of the Procedure for determining compensation for the difference in the cost of materials, products and structures and transportation building materials, products and structures in excess of the cost indices for construction and installation work"
With a purpose effective use budget allocations allocated for capital investments, as well as the establishment of a unified approach to determining compensation for the difference in the cost of materials, products and structures and transportation of building materials, products and structures specified in the design documentation that has passed the state examination, and documentation on placing an order in excess of cost indices construction and installation work, I order:
Differences between the cost of return and the actual cost of goods
Here’s the question: I’m writing some kind of processing that, from the enterprise’s self-written IS (storage - sql server), pulls out a return to the supplier and, based on this data, generates a corresponding document in 1C. Everything works out well, however. in the postings I see D76.02 - K91.01 with the inscription “Difference in the cost of return and the actual cost of goods” and the amount of the transaction slightly falls short of the amount of the document (document from the 1st line).
Barabash Olga Vladimirovna(01.11.2016 at 16:35:06)
Hello, Ivan. Firstly, before you say anything, take a photo of the price tag in this store for this similar model. So that it can be seen that this is a showcase of this store (you can take 2 photos, one is larger, the second is a further view, with counters). This is just in case. But the cases are different.
Then write a claim where you indicate that due to the identification of significant defects in the product, you refuse to fulfill the purchase and sale agreement and demand: either a replacement with the same one, or a replacement with another brand or model at the same price, or a refund of the money paid for the product funds taking into account the current price of this product.
But what is the current price of YOUR product - you can find out either from other Sellers (also take a photo), or from experts (i.e. order an examination).
The seller, if he does not have the same product or one that suits you as a replacement, must make a replacement within 30 days or return the money within 10 days.
The amount is either as on the check, or you agree with each other how much more expensive (for which, as I indicated above, you mention the prices of other Sellers or give a copy of the expert’s opinion.
It is possible without photos of other stores and without expert opinions, then the penalty will then be significantly - significantly less than what you could have received.
Another option. You find out how much your product would cost now (this is all as I indicated above - at the prices of other Sellers or expertise) + pay extra up to the brand that suits you now.
As for the option to exchange this product for a similar product without additional payment, but more expensive, keep in mind the following:
1) Similar goods are goods that are completely identical in functional purpose, application, brand, model, quality and technical specifications another product. Or, in the absence of a completely identical product, a similar product is equated to a similar product that has characteristics close to those of another product.
And new versions usually have improved characteristics
2) not any difference in price is reimbursed, but which one I indicated above.
If you go to court, you will meet there with the Seller’s lawyer, who is fluent in all these nuances and will confuse you so that you will not even notice.
If you get a good lawyer, then with one penalty and fine you can reimburse yourself for the entire difference in the prices of the goods.
With an inexperienced lawyer, you will receive less in penalties and in fines and unnecessary examinations, you will spend money and lose (In the proportion of claims that are not won, you will pay part of the seller’s lawyer and state fees, and if that lawyer is good, you will lose completely) and will not see any additional payment .
Draw your own conclusions. I gave a very detailed answer. Good luck!