Real damage. Collection of real damage

Losses are recognized as negative property consequences that arise in connection with the violation of the rights of the subject. They act as an integral element in the composition of wrongful conduct, if it results in their infliction. Let's consider what losses represent the real damage.

General information

In civil law, losses are an objective condition and a measure of responsibility. This allows to ensure their full compensation. The recovery of real damage, thus, helps to restore the property position of the victim, bringing it to its original state (before committing the violation).

Definition

In the Civil Code, losses are the expenses that the entity whose rights are violated, incurred or will have to incur to restore its property status. They also refer to the damage or loss of valuables or the loss of profits that could have been received by a person under normal terms of turnover if his interests had not been infringed. This definition is contained in Art. 15 of the Code. Thus, the legislation allocates real damage and lost profits.

Unearned income

Real damage and lost profits have a number of distinctive features. The most complete information on incomes not received is stated in the plenary Decree of the Supreme Council No. 25 of June 23, 2015. The document states that, within the meaning of Art. 15 as a lost profit, it is necessary to recognize the unsettled profit, which would be increased by the mass of the property of the subject whose right was violated if there were no unlawful behavior. Since it is a matter of unreceived income, in resolving cases concerning its compensation, it is necessary to take into account that its calculation, which is provided by the plaintiff, is usually approximate and differs in a probabilistic nature. This circumstance can not in itself act as a basis for refusing to accept the application. If the person who violated the right of the plaintiff received income in connection with his illegal behavioral acts, the victim has the right to demand compensation along with other losses of lost profits in the amount not less than this income. In determining lost profits, the court must take into account not only the potential revenue, but also the costs that are necessary to obtain them. In case of failure to provide a calculation of the costs in compensation can be denied.

Real damage: Civil Code of the Russian Federation

In accordance with Art. 393 of the code, the entity must compensate the lender for losses incurred as a result of non-fulfillment or improper fulfillment of the terms of the transaction. Relevant obligations arise from the contract in connection with the infliction of harm, as well as on other grounds provided for in legislation. The latter are indicated in art. 8 CC. The grounds for the emergence of obligations, in particular, include acts of state bodies and local authorities, decisions of meetings, legal events, with the onset of which normative acts link the emergence of civil and legal consequences, and so on.

Features of the proof

When submitting an application with a demand to compensate for losses (real damage), the plaintiff should submit materials confirming:

1. Illegality of conduct.
2. The fact of the occurrence of harm and its magnitude.
3. The link between actions / inactions and the consequences.

The amount and kind of evidence that the plaintiff must provide will depend on what the real damage is: the property is lost or damaged, certain expenses incurred, and so on. Explanations in this regard are given in the Decree of the Armed Forces No. 6/8 of 1.07.1996. Paragraph 10 of the said document states that the actual damage includes not only the actual costs incurred by the victim, but also the expenses that he has incurred for Restoration of their violated rights. These circumstances should be taken into account when resolving cases related to the presentation of claims for compensation for harm. The need for costs that constitute real damage must also be supported by calculations and other evidence. As 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 very fact of the 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 victim in kind. So, if the infringed right is supposed to be restored by acquiring certain values or services / works, their value should be determined in the manner provided for in Art. 393, clause 3 of the Code, and in those cases when on the date of presentation of the claim or decision, the actual expenses to the victims have not yet been made.

An Important Moment

According to paragraph 3 of Art. 393 of the Code unless otherwise established by law, other regulatory enactments or agreement, when determining the amount of loss into consideration, prices that existed in the place where the obligation was to be fulfilled 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 that was in effect on the day the application was submitted to the court was taken into account. Taking into account the circumstances, the authorized body can satisfy the claim for compensation of losses, proceeding from the prices existing on the date of the decision.

Amount of compensation

The claimant may demand that the offender compensate the actual (material) damage in full if the law or the contract does not provide for a smaller size. This rule should be considered in conjunction with Art. 400 of the Civil Code. According to the norm:

1. For some obligations, including those related to certain activities, the law may impose a restriction on full compensation for losses.
2. The agreement on reducing the liability of the debtor under interconnection agreements and other acts for which the creditor is an individual acting as a consumer is considered null if the scope of liability is determined by the rules or it is concluded before the occurrence of circumstances that entail negative consequences for non-fulfillment or improper performance of duties .

Examples

The legislation establishes the following cases when the right of the creditor to demand that the debtor repay the direct real damage is completely limited:

1. Art. 78 of the Civil Code. The assignee (heir) of a member of the general partnership is liable for the obligations of the association to outside parties, for which, according to art. 75, item 2 would be answered by the participant who left the company, within the limits of the transferred property.
2. In accordance with Art. 354 of the Merchant Shipping Code, the liability of the shipowner and the lifeguard is limited in accordance with the requirements established by the Code in Art. 355.
3. If a penalty is provided for improper performance or failure to perform the duty, the actual damage is compensated for in the part not covered by it. In the law or the contract, various cases can be determined. For example, it is allowed to collect only forfeits, but not losses, when a claim for compensation of damages entirely in excess of it may be presented, and also when either the latter or the other can be reimbursed at the option of the victim.

Nuances

It should be noted that interest for the use of foreign funds always have a credit rating. This means that the real damage to the Civil Code can be compensated only in a part that is not covered by them. This provision is established by Cl. 395 of the Code, as well as paragraph 50 of Decree No. 6 of the Supreme Council of the Armed Forces and of the Plenum of the Supreme Arbitration Court of July 1, 1996 No. 8. The real damage that has arisen in the organization or a citizen in connection with illegal actions / inactivity of state or local authorities or employees of the said structures, in Including when issuing a legal act that is contrary to the norms, is compensable by the Russian Federation, a subject of the Russian Federation or a municipal entity. This prescription is contained in Art. 16 of the Code.

Arbitrage practice

The authorized body abolished earlier decisions in favor of the plaintiff, who demanded compensation for actual damage and loss of income under the repurchase agreement. The court pointed out that the seller-creditor was unable to prove the occurrence of financial losses that arose when the debtor failed to fulfill its obligations regarding the return of securities. Thus, the refusal to satisfy the application was justified by the non-submission of supporting documents.

The plaintiff applied for compensation for actual damage caused by improper storage of property that was seized by the executive federal body. The application was granted, since the transfer of values does not relieve the state of responsibility for losses caused by failure to provide the authorized security structure of things. The real damage was calculated by the plaintiff in the form of a difference between the purchase price and the price of the actual sale of spoiled products. The applicant has determined the lost income in accordance with the sale value of goods of the proper quality that exists on the market. At the same time, the transportation and procurement costs and the purchase price were deducted.

The following example concerns improper assessment by the courts of the respondent's arguments about the causal connection between his actions and the occurrence of negative consequences in the form of the harm inflicted to the plaintiff. In accordance with the technical conclusion, the cause of the collision of the locomotive and wagons, which caused the real damage to the applicant, indicates the presence of violations in the actions / inactions of the respondent and the customer. The latter, under the terms of the contract, took the responsibility to give instructions on the use of the locomotive. Under these circumstances, decisions made in the case can not be considered lawful. In this regard, they are subject to cancellation, and the materials of the case - to be sent for reconsideration to the first instance to examine the claimed requirements, to identify the actual events of the incident and to evaluate the evidence provided.

Other cases

In the cassation appeal, the applicant, who is the bankruptcy administrator, refers to the impossibility of establishing the amount of damage. As a justification, the subject is led by the fact that the contract, in which the second party is the participant in the shared construction, was not terminated. This cassation instance does not accept this argument, since the Federal Law "On Bankruptcy" does not set a prohibition on determining the amount of losses in case the entity did not refuse to fulfill the terms of the transaction. In addition to art. 201.6 of this law have been amended. With their consideration, construction participants can attend meetings of creditors and have a number of votes determined in accordance with the amount paid to the developer under an agreement providing for the transfer of housing or the value of property provided to the service company, as well as the magnitude of losses in the form of real damage. It is established under Art. 201.5, item 2. All these facts together testify that the existence of the requirements for the transfer of the premises and the non-struck contract is not considered an obstacle to determining the magnitude of the real damage.

It is worth saying that disputes about compensation of losses are often connected with real estate. For example, in Art. 161, part 1 of the LC, it is established that management in an apartment building should ensure safe and favorable conditions for the citizens to live, the maintenance of common property in proper condition, the resolution of issues relating to its operation, and the provision of the provided communal services.

The plaintiff sent an application to the court to compensate for the damage caused by the accident in the cold water supply pipeline. The court examined the submitted materials. In view of the circumstances, the authorized body granted the applicant's claim by imposing a penalty on the management company.

Conclusion

Judicial practice shows that disputes about compensation of real damage and loss of profit are often considered by authorized bodies. The main difficulties in dealing with cases arise at the stage of collecting and providing evidence that justifies the positions of the parties. In this case, 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.

Special attention is paid to the calculations of experts. Calculations must be made not only for real damage, but also for the amounts that are supposedly spent on restoring rights. Of no small importance is the accuracy of calculating the profit that has not been received.

At the same time, it should be said that many disputes do not reach the court, because the parties manage to solve everything peacefully. Specialists recommend, if circumstances allow, to send the claim to the subject who violated his 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 this is not the way to resolve the conflict, then you should go to court.