Журнал ЗАКОН

Case Comment on the Judgment of RF SC No. 305-ЭС17-20897, 17 May 2018 The Ruling of the Supreme Court dated 17 May 2018 No. 305-EC17-20897 returns us to the problem of correlation between the liability in tort and the insurance of such liability. Until recently, the court practice stood on a position that the insurer had to be adjoined into the proceedings initiated by the victim. In this case, however, the court held that the victim was entitled to claim recovery from the tortfeasor directly. Thus, the court applied a restrictive construction of article 1072 of the Russian Civil Code, while its literal construction implies that the tortfeasor is liable only for the balance between the amount of harm and the insurance money. The uncertainty in the issue of correlation between the victim’s claims against the tortfeasor and the liability insurer allows to put forward a number of suggestions de lege ferenda. The first is to stipulate that the insured who has indemnified the victim is entitled to claim insurance money from the insurer. The second proposal is to allow liability insurance in favour of the insured.

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Keywords: tort, indemnification of harm, liability insurance

Case Comment on the Judgment of RF SC No. 301-ЭС17-7613 (3), 23 August 2018 In the case in question, there was a dispute about the invalidity of the agreement aimed at the termination of the Bank’s pledge, securing the borrower’s obligations under the outstanding credit. The author criticizes the conclusion of the Supreme Court on the gratuitousness of such agreements since it is impossible to dispute it on the basis of clause 2 of art. 61.2 of the Law on Insolvency (Bankruptcy). The other conclusion of the Supreme Court that the agreement may be disputed on the basis of clause 2 of the same article is not considered by the author to be pervasive.

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Keywords: invalidity of the transaction, pledge, Article 61.2 of the Law on Insolvency, knowingly unprofitable transaction

Case Comment on the Judgment of RF SC No. 18-КГ18-92, 19 June 2018 The Judicial Chamber for Civil Cases of the Supreme Court of the Russian Federation ruled that the second buyer’s claims against the developer in the «double sale» of the same property are valid. It is noted that the retreat from the usual general jurisdiction court practice, invalidation of such claims is probably due to the special circumstances in which such a sale took place and became a double sale. The Supreme Court had to intervene since previous disputes regarding the same sale were decided by courts with clear violations of substantive an procedureal law; nevertheless, they entered into force and bacame binding. The correction of such previously perpetuated errors required the retreat of general jurisdiction courts headed by the Judicial Chamber for Civil Cases of the Supreme Court of the Russian Federation from their usual practice and the logic used to classify what qualifies as a «double sale» by arbitrazh (business) courts that see them not as invalid transactions, but as a violation of its obligations by the developer.

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Keywords: double sale, assignment, generally binding character of judicial acts

Commentary to the Case Sheikh Tahnoon Bin Saeed Bin Shakhboot Al Nehayan v. Kent [2018] EWHC 333 (Comm.) (22 February 2018) In this case, as decided by the High Court of England and Wales, the question arose as to whether there is a duty in English contract law to act in good faith. More precisely, whether the parties of a joint venture contract have such a duty to each other. Lord Justice G. Leggatt suggested an innovative idea for the English law that such a duty exist as an implied term in certain types of contracts. In this case, the duty of good faith meant, according to the judge, that a party to the contract has no right to force an unfair division of the business, as well as secretly from the partner to conduct negotiations on the sale of its share of the business to a third party. However, the judge admitted that the question of the existence of the duty of good faith remains controversial. So in alternative the decision was based on tort law: forcing a partner through blackmailing and threatening to enter into a disadvantageous agreement for a business division is not only a violation of the contractual duty (if any) but is also a tort.

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Keywords: England, division of a business, contract law, good faith, tort, duress, intimidation

The author considers the key arguments that are discussed in the Russian and foreign scientific discourse in relation to the need to reduce the priority (subordination) of loans for members of legal entities. The main arguments in favor of subordination are the abuse of the limited liability principle, stimulation of an earlier opening of the procedure, inadmissibility of the transfer of financial risks, and the creation of false solvency, etc. The main objection is that the reduction in priority discourages the attempts to reorganize the company outside the formal insolvency (bankruptcy) procedure. The author reaches the conclusion that the arguments put forward along with foreign experience should be taken into account in the development of an optimal regulation in Russia.

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Keywords: law policy, loan subordination, insolvency (bankruptcy)

This article is devoted to the legal analysis of disgorgement of profits under Dutch law in comparison with its closest Russian counterpart (аrt. 15(2) of Russian Civil Code) which is essentially a verbatim adoption of the Dutch law provisions on disgorgement of profits. The purpose of the article is to form certain recommendations on the improvement of Russian legislation and judicial practice based on the conclusions to be drawn from the development of disgorgement of profits under Dutch law, given that many questions arising regarding the application of disgorgement of profits have not yet been addressed by Russian law. The article consists of two parts. The first part addresses the main development stages of disgorgement of profits under Dutch law (including its adoption as legislation and development in court practice) revealing the existing contradiction between the policy considerations behind the disgorgement of profits and the way it has been codified by the positive law. Furthermore, the author concludes that the same contradiction exists under Russian law as well and addresses possible solutions for resolving the contradiction (codification of disgorgement of profits as part of unjust enrichment law given there are all necessary preconditions for that in Russian law). The second part of the article is concerned with legal analysis of the recent Russian Supreme Court ruling wherein the disgorgement of profits was for the first time brought to the attention of the Russian higher judicial bodies. Based on the conclusions made congruent to prior analysis of Dutch law, the author addresses possible solutions to legal issues arising in connection with the ruling in question. Such solutions can be: 1) implementation of the policy idea of overcompensation behind disgorgement of profits notwithstanding the dogmatic contradictions; 2) codification of аrt. 15(2) of Russian Civil Code under a legal doctrine which is more capable of reflecting the nature of disgorgement of profits; 3) codification of аrt. 15(2) of Russian Civil Code as a standalone legal remedy — the right to demand and obtain the unlawfully gained profits.

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Keywords: disgorgement of profits, winstafdracht, unjust enrichment, abstract damages, Netherlands

When the lessee receives the rights and obligations under the lease agreement in the form of a lease transfer, is he obliged to repay the lease debt of the former lessee accrued before the lease transfer? Due to the resolution of the Plenum of the Supreme Court of Russia No. 54 dated 21.12.2017, judicial practice on this issue has changed as dramatically as it has suddenly. First, if the lease transfer is performed with the consent of the lessor, the accrued rent debt shall now, as a general rule, be paid by the new lessee, but not the by previous one. Second, in the event of the lease transfer without the consent of the lessor, the new lessee is jointly obliged to repay the already accrued debt. The author criticizes these rules. First one — because it leads to unforeseen consequences for new lessees that received the property before the clarification. Second one — because it does not provide the expected protection for the lessor. Since the lessor did not choose a new lessee, the lessor could be given the opportunity to force the previous lessee to pay the lease amount accrued after the lease transfer. However, the Supreme Court speaks of a joint and several liability only with respect to the debt accrued before the lease transfer. The author also substantiates the conclusion that these rules are not to be applied to the situation when the lease right is reserved by its pledgee.

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Keywords: transfer of contract, lease transfer, pledge of lease right, joint and several liability

The article gives the concept of serial cases. The author divides the series of cases into judicial (developing law and correcting judicial errors) and representative (similar and dissimilar). Some of the proposed tools for dealing with serial cases include combining cases and complaints into one proceeding, reviewing pilot cases, reviewing judicial acts on new circumstances in connection with the definition of practice, and procedural requests.

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Keywords: serial cases, commercial court, revision of judicial acts, review of newly discovered circumstances

The article analyzes the question of the correlation of pari passu principle with the preclusive term for proof of claim filling. The preclusive term for proof of claim filling generates a large amount of problematic situations connected with an unreasonable decrease in the creditor’s claims priority (considered in the article), which, in the author’s opinion, is a violation of the basic principle of bankruptcy law — pari passu principle. The judicial practice of the Supreme Court of the Russian Federation, and recent changes in legislation are expressed in support of this position. The approaches of foreign countries to the solution of this issue are studied in the framework of the article as well. Based on this comparative legal analysis, the author suggests this tension is to be resolved by either extending the number of cases with terms eligible to be included in the register of creditors’ claims, or, alternatively, the preclusive term could be abandoned altogether. Until recently, legislation and judicial practice developed in the former direction. However, the amendments to the Insolvency (Bankruptcy) Law proposed by the Supreme Court in November 2018 demonstrate that the court rather prefers not to consider this term as preclusive.

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Keywords: bankruptcy (insolvency), register of creditors’ claims, pari passu principle, preclusive term

The author considers the judicial practice of applying the rule of confirmation of the disputed transaction (cl. 4 par. 2 art. 166 of the Civil Code of the Russian Federation), which appeared in the domestic legislation in the framework of the reform of the Civil Code. The study identified a number of difficulties. In particular, the courts do not understand the legal nature of this rule, do not take into account the differences between the provisions of cl. 4 par. 2 and par. 5 art. 166 of the Civil Code. In practice, the possibility of transaction confirmation for those disputed on corporate grounds, as well as the limits of this rule with respect to transactions that are contrary to the law are discussed. The author also discusses the forms of transaction confirmation in practice.

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Keywords: transaction confirmation, good faith, waiver, transaction invalidity

This article provides an analysis of judicial practice in relation to the application of clause 5 of article 166 of the Civil Code of Russian Federation (estoppel). Following the analysis, the author concludes that courts recognize and actively apply estoppel. However, the author notes that they do not differentiate clearly between clause 5 of article 166 of the Civil Code and paragraph 4 of clause 2 of article 166 of the Civil Code (waiver of right to appeal). Furthermore, the author concludes that courts, while applying estoppel, do not explicitly acknowledge, but effectively cure void transactions. Besides, there are several cases where courts refuse to apply estoppel, e.g. in bankruptcy cases. In summary, the author states that no clear-cut criteria have been established for the application of estoppel so far.

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Keywords: estoppel, void transaction, convalidation