Журнал ЗАКОН

Case Comment to the Judgment of the Judicial Chamber for Civil Cases of the SC RF No. 38-КГ25-1-К1, 8 July 2025 The commentary raises the question of the legal significance of compensation paid to the owner for the value of property stolen from them prior to vindication, the possibility of the subject of dispute remaining with the bona fide defendant, and the possible legal mechanisms for such retention. Drawing on historical, comparative legal, economic, and systemic legal arguments, it is demonstrated that, despite a number of dogmatic difficulties, this solution is possible both from a theoretical and a legal-political perspective. At the same time, it is noted that the establishment of such a solution at the level of judicial practice imposes very high demands on the judicial act in which it is formulated, so that it is capable of addressing all the contentious issues that may arise in the process. Meanwhile, the decision under commentary proved to be too vague and concise to meet the high standards required of precedent-setting judicial acts. Furthermore, it is noted that the act itself is formulated in such indeterminate terms that it may only lead to even greater uncertainty in legal regulation.

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Keywords: vindication, compensation for damages, bona fide acquisition, competition of claims, procedural sale

The second part of the article examines the issue of determining the procedure for the return of performance under a terminated contract. The author, on the basis of comparative analysis, substantiates the admissibility and expediency of extending the theory of synallagma to claims arising from the contract termination. Particular attention is paid to the regulation of this issue in Russian law. Thus, the Supreme Court of the Russian Federation resolves the corresponding dilemma by expanding the logical boundaries of the model of compulsory bilateral restitution, which is actively applied in cases of invalid transactions. However, this approach is far from indisputable, as it is at odds with the fundamental principles of private and procedural law, and also contradicts formal logic.

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Keywords: synallagma, restitution, principle of simultaneous exchange, reversive obligations, conditional judicial decision, mandatory bilateral adjudication, exceptio non adimpleti contractus

Agents, including trustees and corporate directors, very often engage in investing on behalf of their principals. In practice, however, it is often difficult to determine whether the actions of an agent were prudent or whether the agent should be held liable for losses resulting from unsuccessful investments. This article addresses this issue in the context of Russian law. It is published in two parts. In the second part, we examine specific criteria for assessing the reasonableness of investments and, on this basis, propose a revised version of the prudent investor rule, which is widely applied in foreign legal systems. In addition, we analyse the allocation of the burden of proof in disputes concerning imprudent investment and demonstrate how a number of less extensive, yet nevertheless important, issues relating to the prudence of investment management may be resolved.

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Keywords: investments, duty of care, agency problem, business judgment rule, prudent investor rule

The article examines standard clauses in reinsurance contracts, which originated predominantly in English law but are widely employed in reinsurance practice worldwide. By reference to one such clause, it is demonstrated, that in contracts governed by Russian law, their application proves problematic because the established interpretation of these clauses under English law does not coincide with their interpretation under Russian law. The article proposes a possible solution to the difficulties identified.

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Keywords: reinsurance contracts, standard reinsurance clauses, compilation of standard reinsurance clauses, cut-through clause

This paper analyzes the nature of contra legem interpretation. The first part examines the concept of contra legem interpretation. The author proposes to view such interpretation as a result of adjusting a positive legal norm aimed at eliminating a teleological gap in the law. Further, the terms contra legem and contra ius are distinguished based on the thesis of the non-identity of law and statute. It is also substantiated that the object of adjustment is the text of the law (its clear literal meaning) and not the will (intent) of the legislator. The second part of the article asserts that contra legem interpretation manifests itself in three forms: teleological reduction, teleological extension, and complete alteration of the statutory text. The author proposes criteria for distinguishing restrictive/extensive interpretation from contra legem interpretation, while emphasising the inherently conventional nature of their boundaries. The relationship between analogy of statute and analogy of law with contra legem interpretation is also examined.

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Keywords: contra legem, judicial law-making, statutory interpretation, teleological gap, teleological reduction, teleological extension, extensive interpretation, restrictive interpretation, analogy of statute, analogy of law

The present study attempts to identify general principles for the liability regime of gratuitous debtors. Despite the differences between recognised contractual types, such liability appears amenable to the construction of a common model. Specifically, it proposes distinguishing between gratuitous agreements motivated by generosity or other affective considerations and those lacking such motives. It is only within the former framework that the debtor deserves leniency in the liability regime, whereas gratuitousness itself does not imply automatic mitigation (Utilitätsprinzip). On the basis of this thesis, the article further discusses other elements of the model, including a reduction in the required degree of fault of the gratuitous debtor, limitation of liability to the negative interest, and the exclusion of liability for certain types of breach.

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Keywords: gratuitousness, liability, contract law

The parameters for the development of land plots are determined in concession agreements and public–private partnership agreements (PPP agreements). However, PPP agreements do not constitute legal grounds for the creation of land rights for private partners or concessionaires; such rights arise on the basis of land lease agreements. The academic literature contains no systematic analysis of the efficiency of allocating land rights through the combined use of PPP agreements and land lease agreements. The purpose of this study is to identify the specific features of the legal organisation of PPP relations associated with the provision of land on the basis of a lease agreement. To achieve this aim, the method of transaction cost analysis is employed. This study examines data on the lease of 331 land plots in St. Petersburg as well as the terms of 136 PPP agreements concluded with the participation of constituent entities of the Russian Federation. The analysis reveals a tendency for PPP agreements to incorporate provisions typically found in land lease agreements. It is suggested that the lease agreement merely formalises land rights and does not introduce significant new obligations relating to land use into the structure of the parties’ legal relations. In this regard, the article proposes recognising PPP agreements as independent legal grounds for the creation of land rights, thereby excluding land lease agreements from the contractual structure of PPP projects.

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Keywords: law and economics, transaction costs, public-private partnership, concession agreement, land plot, lease, construction, real estate