Журнал ЗАКОН

Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС24-21664, 15 March 2025 In the decision under comment, the Supreme Court expressly classified the brokerage agreement as a contract of services. Although the specific facts of the case were not directly concerned with the proper legal classification of the brokerage agreement, such an explicit characterisation may have significant negative consequences for commercial practice. By adopting this approach, the Supreme Court not only detached the brokerage agreement from the regulatory framework that reflects its legal nature, but also created further doctrinal uncertainty regarding the distinction between contracts for work and services, on the one hand, and mandate (agency) contracts, on the other.

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Keywords: mandate, service contract, contract for work, brokerage agreement, fiduciary nature, intermediary agreements

Mistake (often used in legal discourse as a synonym for the concept of ‘error’) is in certain cases considered as grounds for the annulment of a contract. The article analyses one of the key issues of the doctrine of mistake — the permissibility of annulling a contract due to an error against a bona fide counterparty, who is not involved in the mistake and is unable to recognise it. The first part of the article examines two models of legal resolution of this issue that have developed in European legal systems: the positive model, which presumes the blocking of the right to challenge the contract against a bona fide counterparty, and the negative model, which allows the annulment of the contract on condition of compensation for the negative interest. The second part analyses the approach used in Russian law, identifies elements of both models, examines their advantages and disadvantages, and substantiates the permissibility of a compromise-based differentiated approach, in which the positive model is considered as the general rule, and the negative model is applied in exceptional cases.

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Keywords: mistake, error, protection of reliance, property rule, liability rule, recognisability of a mistake, negative interest, stability of commerce, invalidity of a transaction, nullification of an agreement

Participation-based contracts — such as profit-dependent loans, turnover-based leases, and royalty-bearing license agreements — are widespread in commercial practice but remain largely underexamined in Russian legal scholarship. This article constitutes the first part of a two-part study devoted to participation-based contracts. It analyses three competing models of their qualification: as contracts of exchange, as agreements on joint enterprise, and as mixed contracts.

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Keywords: participation-based contracts, exchange contract, partnership, mixed contract

The article substantiates the need to apply the civil law principle-norms embodied in Articles 1 and 10 of the Civil Code of the Russian Federation as positively expressed elements of negative public policy (ordre public). Purely formal logic and the constitutional significance of the analysed principle-norms cannot, in themselves, justify their characterisation as overriding mandatory rules. A mirror approach to Articles 1192 and 1193 of the Civil Code is inadmissible. The application of Articles 1 and 10 as overriding mandatory rules is possible only as constituent elements of procedural public policy at the stage of exequatur review of a foreign court judgment or arbitral award. In cross-border bankruptcy cases, despite judicial references to Article 1192 of the Civil Code, the provisions of Articles 1 and 10 are not endowed with overriding mandatory effect; rather, they serve to protect the constitutionally significant public-law objectives of insolvency, namely the interests of the community of bona fide creditors. Unlike domestic counter-sanctions measures, Articles 1 and 10 do not produce a direct regulatory effect within the system of private international law. The inapplicability of unfriendly unilateral coercive measures should be grounded in the mechanism of Article 1192(2) of the Civil Code, rather than in the combined reliance on Articles 1, 10 and Article 1192(1).

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Keywords: overriding mandatory rules, rules of immediate application, ordre public, private international law, civil law principle-norms

The claim of a credit institution under a loan agreement and the substantive tort claim arising as a result of the commission of a crime are both directed at protecting the same proprietary interest — namely, the recovery of the outstanding debt under the principal obligation. An analysis of judicial practice involving credit institutions indicates that, where the claim under the principal obligation is assigned, the procedural rights of the civil claimant in criminal proceedings are exercised either by the credit institution (the assignor) or, in certain cases, by the assignee. The mere transfer of the tort claim to the assignee does not automatically determine the procedural form of protection available to that person in criminal proceedings. A civil claim within criminal proceedings constitutes a privileged procedural mechanism designed to protect the infringed rights of the victim, rather than those of an assignee who has acquired the claim by way of singular succession (assignment). This article examines who holds the tort claim arising from the commission of a crime and in what procedural form such a claim may be pursued following its assignment. It further analyses the relationship between the lender’s contractual claim against the borrower for repayment of the loan and the substantive tort claim asserted in criminal proceedings, as well as the effect of the assignment of the creditor’s contractual claim on the assignee’s ability to bring a civil claim within criminal proceedings.

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Keywords: joint and several obligations, civil claim, criminal proceedings, assignment of claims, economic interest

The author’s model of liability for a gratuitous debtor includes the following forms of mitigation: 1) a limitation of the recoverable damages; 2) a reduction in the required standard of fault; 3) the exclusion of liability for certain types of breach. This study examines the application of this model to the nominate gratuitous contractual types specified in the Civil Code of the Russian Federation. As a result, a number of solutions are proposed which, in the author’s view, are capable of reflecting the specific legal regime governing gratuitous obligations.

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Keywords: gratuitousness, contract law, liability, donation, loan

This article examines the case of Russian Coal v. OTP Bank, which reached the Supreme Court of the Russian Federation and concerned commodity swaps concluded on the basis of the 2011 Model Terms of the Agreement on Derivative Transactions in the Financial Markets. In resolving the dispute, the court effectively recalibrated the contractual mechanism for the termination of obligations through close-out netting, thereby achieving what it considered a more equitable allocation of the parties’ claims. At the same time, an attempt by a Russian exporter to challenge the validity of swap transactions concluded under the General Agreement on Derivative Transactions in the Financial Markets was not supported. The article evaluates the conclusions reached in this case through the lens of economic analysis of law, specifically the theory of incomplete contracts. This analysis is preceded by a general overview of the standard framework agreement widely used in Russia for over-the-counter derivative transactions. Particular attention is devoted to contractual provisions on early termination and close-out netting, as well as to the possible courses of action available to the parties following the introduction of foreign restrictive measures affecting Russian commodity exports. The article also considers the prospects for adapting swap transactions to the changed economic and regulatory environment under existing civil law rules.

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Keywords: derivatives, commodity swaps, replacement transactions, derivative financial instruments, close-out netting, incomplete contract

This article reviews the recent judgment of the Russian Constitutional Court concerning the seizure of property in criminal proceedings where the owner of the property has been declared bankrupt. This issue has been particularly relevant for Russian legal practitioners in recent years, as it raises complex questions regarding the relationship between criminal law and insolvency law, fairness towards victims of crime, and the interaction between courts of different jurisdictions. The Constitutional Court proposed a temporary mechanism for lifting property seizures in such circumstances. However, this mechanism contains significant procedural and substantive gaps, which are likely to create difficulties in its practical implementation. The author offers a number of practical recommendations for lawyers seeking to rely on this mechanism.

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Keywords: bankruptcy, seizure of property, crime, compensation for damage, civil claim within criminal proceedings