General Director of NP "Educational
__________________________________, address: ______________________________
Claim under the service agreement and refund of funds
__________ of the year between NP Educational and me, _____________________, an agreement on the provision of educational services No. ____________ was concluded, in accordance with clause__ of which you, NP Educational, assumed an obligation to provide services for __ classes - English language teaching, starting from _____________ every _______ and _______ from _____ hours. In accordance with paragraph___ i, the “Customer” is obliged to pay for the above educational services in the amount of __________ (_______________) rubles. For my part, I fulfilled my obligations to pay for these services to the extent that is confirmed by receipt and cash orders dated _______________. However, despite the concluded agreement, the service under the agreement was not provided on your part. I have repeatedly contacted NP Educational with a demand to return the money, but my demands were ignored, the money was not returned to me, and the service was not provided. ________ year, I sent an application to you for the return of the amount of money, but I have not received a response to this day. In accordance with Article 29 of the Law of the Russian Federation “On the Protection of Consumer Rights”, when discovering deficiencies in the work performed (service rendered), the consumer has the right, at his own discretion, to demand: free elimination of deficiencies in the work performed (service rendered); corresponding reduction in the price of work performed (service provided); free production of another thing from a homogeneous material of the same quality or repeat work. In this case, the consumer is obliged to return the item previously transferred to him by the contractor; reimbursement of expenses incurred by him to eliminate deficiencies in the work performed (service provided) on his own or by third parties. Satisfying the consumer's demands for the gratuitous elimination of defects, for the manufacture of another item, or for the repeated performance of work (provision of a service) does not relieve the contractor from liability in the form of a penalty for violating the deadline for completing the work (provision of a service). The consumer has the right to refuse to fulfill the contract for the performance of work (rendering a service) and demand full compensation for losses if, within the period established by the specified contract, the shortcomings of the work performed (service provided) are not eliminated by the contractor. The consumer also has the right to refuse to fulfill the contract for the performance of work (provision of a service) if he discovers significant deficiencies in the work performed (service provided) or other significant deviations from the terms of the contract. In connection with the above, in accordance with Art. 15 of the Civil Code of the Russian Federation and Art. Art. 23, 29 Federal Law “On Protection of Consumer Rights”
Pay me, _____________________________, in compensation for damage caused by the provision of (poor) unprovided services, funds in the amount of ____________ rubles (___________________________) within ten days from the date of receipt of this claim.
If this Claim is refused or there is no response within 10 (Ten) days, I will be forced to apply in accordance with Art. 17 of the Law “On Protection of Consumer Rights” and Art. 11, 12 of the Civil Code of the Russian Federation with a statement of claim to the court with the requirements:
— collection of a sum of money in the amount of ___________ rubles (____________________);
- payment of interest for the use of other people's funds in accordance with Art. 395 of the Civil Code of the Russian Federation from the amount to be returned to me upon the provision of poor-quality services;
- compensation for moral damage in accordance with Art. 151 Civil Code of the Russian Federation and Art. 15 of the Law “On Protection of Consumer Rights”;
- reimbursement to me for all legal and other expenses, including costs for assessing damage, expenses for paying telegrams, state fees, legal services of my representative (lawyer) for drawing up a claim and further protecting my interests in court, in accordance with Art. 88, 100 Code of Civil Procedure of the Russian Federation;
I would also like to draw your attention to the fact that, in accordance with Art. 13 of the Federal Law “On the Protection of Consumer Rights”, for violation of consumer rights, the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) bears responsibility as provided by law. Moreover, if the court satisfies the consumer’s requirements established by law, the court will collect from the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) for failure to voluntarily satisfy the consumer’s requirements a fine in the amount of fifty percent of the amount awarded by the court in favor of consumer (Part 6, Article 13 of the Federal Law “On Protection of Consumer Rights”).
I hope that this situation will be resolved by mutual agreement of the parties.
" " _____________ 201_ ___________________ _________________
Claim for debt collection: sample and rules for drawing up
The claim procedure is the first and main pre-trial stage of working with debtors. The debt collection claim itself is a written demand from the creditor to repay the debt in order to avoid litigation. A well-drafted debt collection claim will help convince the debtor of the illegality of his actions and the threat of legal proceedings due to failure to comply with the creditor’s demands for debt repayment. We will tell you how to write it correctly in the article.
The writing of a claim must be taken responsibly, since in the event of further appeal to the court, it will be presented in the materials of the court case:
- From the text of the claim, all the applicant’s demands regarding the amount of debt and the timing of its repayment must be extremely clear.
- Particular attention should be paid to the basis of the debtor's obligation to pay (agreement, receipt, primary accounting documents, etc.). If the debt arose as a result of non-payment for delivered goods, it would be logical to indicate the numbers of unpaid invoices in the claim.
- A competent reference to legislative acts will “add weight” to the claim and indicate the unlawfulness of the debtor’s actions.
- A mandatory point of the claim is the indication of bank details for the transfer of funds, which must match the details specified in the contract.
The claim is signed by an authorized person of the applicant: the sole executive body (General Director) or a person acting on the basis of a power of attorney. The claim must be sent to the legal address of the debtor by registered mail with acknowledgment of delivery. Additionally, the claim can also be sent by email.
Sample claim for debt collection
To: Full name of the addressee-debtor
CLAIM
Agreement No.___ dated “____” __________ ___ was concluded between ________________ and _________________.
(indicate the name of the applicant) (indicate the name of the debtor) (indicate the number and date of the agreement)
(hereinafter referred to as the “Agreement”). Products were delivered/work was performed/services were provided to _______________,
(indicate the name of the debtor) (select the one you need)
which is confirmed by ___________________________________________________________________________.
(list primary supporting documents: acts, invoices, etc.)
Thus, ___________ fulfilled its obligation to supply products/perform work/
(indicate the name of the applicant) (select the one you need)
According to the terms of the Agreement, ____________ undertook to make payment within _____ days from the date
(indicate the name of the debtor) (indicate payment terms)
delivery of goods/performance of work. However, this obligation was not fulfilled.
Currently, your organization has an overdue debt in the amount of _____________________ rubles (indicate the amount of debt in words).
(indicate the amount of debt)
According to Art. 309 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, and unilateral refusal to fulfill the obligation and unilateral change of its conditions are not allowed.
We demand that the debt be repaid by “___” ________ ___, otherwise _________________
(indicate the deadline for debt repayment) (indicate the name of the applicant)
will be forced to go to court to forcefully collect the debt.
We also remind you that according to paragraph 1 of Art. 395 of the Civil Code of the Russian Federation for the use of someone else’s funds due to their unlawful retention or evasion of their return, interest on the amount of these funds is subject to payment.
The amount of interest for a legal entity is determined by the bank interest rate existing at the place of its location on the day of fulfillment of the monetary obligation or its corresponding part. The Agreement does not provide for any other interest rate. Today, the discount rate (refinancing rate) of the Central Bank of the Russian Federation is 8.25% per annum.
Details for transferring funds: INN/KPP ___________, bank __________, Account account ________________, Account account __________________, BIC _________________.
(indicate the applicant’s bank details for transferring funds)
Position of the authorized person ____________________ / Full name of the authorized person /
debt collection claims in Word format (.DOC file).
Sample response to a claim for debt collection
To: addressee's full name
(full name of the sender-debtor) from __________________________
(name of locality)
"__" __________ ____ G.
RESPONSE TO CLAIM
In response to your claim from “____” _____________ ____, we inform you that the debt to
(indicate date of claim)
______________________ in the amount of _______________________ we confirm/do not confirm. Payment
(indicate the name of the applicant) (indicate the amount of debt)
debt will start from ___________________________.
(indicate the start date of debt payment)
Position of the authorized person ____________________ / Full name of the authorized person /
How to determine the amount of the penalty?
There are two main approaches to determining the amount of fines and penalties.
- Contractual penalty . The contract may provide for a fine or penalty for violation of a particular clause of the contract. In this case, the amount of the penalty is determined in accordance with such conditions.
- According to the law . If damage is caused, damage to property or health, if funds are unlawfully withheld, if there are no fines in the contract, then you should use the legal mechanisms established by law.
Please note: the simultaneous application of contractual sanctions and Art. 395 Citizen code is impossible.
It should also be remembered that a reduction in the amount of penalties and other restrictions is not allowed if they are enshrined in the law, for example, on the Protection of Consumer Rights. Limitation of the rights of counterparties by contractual terms is allowed only if this is indicated by law; other restrictions are void and may not be applied by the courts during the proceedings.
Please note: when certain clauses of the contract are declared void or invalid, the statute of limitations will be taken into account. If you believe that a contract violates your rights, you should take immediate action to prevent the statute of limitations from running out. In different cases, it can be one or three years.
What types of penalties are there?
The creditor has two ways to collect the resulting debt:
- claim (pre-trial) procedure;
- judicial procedure;
It should be noted that both of these methods cannot be considered as two separate ways of resolving a debt collection dispute. Or rather, they are interconnected and consistent. In some cases, the legislation establishes the impossibility of going to court without taking pre-trial measures to resolve the dispute (for example, these are disputes under contracts for the carriage of goods, transport expeditions).
A mandatory claim procedure may also be specified in the contract. In any case, you should not neglect the claim procedure for resolving a dispute - this will help save time and money, as well as “relieve the load on the courts.”
The judicial path to resolving a dispute begins with the filing of a statement of claim in court and ends with the receipt of a writ of execution. After receiving the writ of execution, it must be handed over to the bailiffs and then the long process of enforcement proceedings begins. As mentioned earlier, the entire legal procedure from the moment the claim is filed until the debt is received can take many years, which is a very disappointing fact.
Essence of the claim
For service organizations, this type of document is not a formal reminder of the extent of their responsibility to the client. In essence, the preparation of such a document means preparation for the trial (Article 132 of the Code of Civil Procedure of the Russian Federation). If you have not sent a letter of claim, then you can hardly count on a positive outcome of the trial. Because the warning means that the client did everything possible to resolve the dispute peacefully, but the service center did not fulfill its obligations in good faith.
You can file a claim yourself or contact a law firm. SVA lawyers, by drawing up such documents, seek financial compensation for clients for late warranty repairs. The terms must be recorded in the guarantee document. This point is clearly stipulated in the Law of the Russian Federation (Article 20).
What is a receipt debt?
IOUs occur when one individual makes a loan to another individual. Not only cash, but also things defined by generic characteristics can be transferred as a loan. To confirm the fact of the loan and its terms, a receipt from the borrower or another document certifying the transfer by the lender of a certain amount of money or a certain number of things to him may be presented.
If you have a written agreement or receipt, you can safely go to court. However, failure to comply with the simple written form of the contract deprives the parties of the right in the event of a dispute to refer to witness testimony to confirm the transaction and its terms, but does not deprive them of the right to provide written and other evidence.
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Delay in returning repaired equipment
If no deadline is specified for carrying out repair work, that is, the service center accepted the goods, but the receiver did not indicate in writing the deadline for its return, the identified deficiency must be eliminated immediately. But this does not mean that you will immediately get your item back. This vague wording makes it possible to legally delay repairs for an indefinite period. After all, repair work began immediately, and it is unknown when it will be completed. This may depend on various factors (availability of parts, complexity of the work). In this case, the repairman advises “come back in a couple of days,” but does not indicate a clear time frame in writing.
Then, if repairs are delayed, you need to file a claim requesting specific deadlines. It would not hurt to ensure that the already missed period is included in the total period allotted for troubleshooting. The process of replacing a particular part should not last for months, since specific periods are allocated for each type of repair work.
An excessively long period allocated for repairs can be challenged and still benefit from it.
The conclusion is the following: the longer the equipment is not returned, the more money its owner will receive if he has achieved payment of the penalty. Information for drawing up a pre-trial claim
This letter has a standard structure.
- Cap indicating:
- document title
- full name of the addressee;
- information about the service consumer.
- An explanation of the essence of the problem indicating the following data:
- place of purchase (name of retail outlet) of the failed product;
- product description;
- indications of faults.
- warranty document number;
- date of purchase of the product;
- legal grounds allowing to demand elimination of deficiencies;
Some rules for filing a pre-trial claim
In order for the legal force of this document to be fully realized, it is necessary not only to draw it up correctly, but also to correctly bring it to the attention of the counterparty. If the second party is a legal entity, then the claim can be delivered by courier or personally to the reception. The person authorized to accept and certify documents must put a mark on the copy indicating acceptance of the claim, indicating the date and deciphering the signature. This copy is handed over to the applicant, after which it serves as evidence of receipt by the debtor of the document.
If the debtor is located far away or is an individual, then the claim must be delivered via mail with a notification that clearly states the name of the document.
A few days after the addressee receives the claim, you can call him and ask about his intentions. Reminders will not only draw the debtor's attention to the problem, but will also help the creditor avoid litigation.
How to formulate the terms of a penalty in a contract
The penalty clause is one of the key clauses in contract agreements. Last but not least, it is the penalty mechanism that is designed to ensure compliance with the deadline for completing work - one of the three fundamental pillars of a contract of this type, constituting the well-known “investment triangle” - quality, time, price.
At the same time, the penalty can equally ensure other obligations under the contract (both the contractor and the customer), in particular, the contractor’s compliance with the established work schedule, the achievement of a certain quality of the work result, compliance with payment deadlines under the contract, and exclusive rights third parties, conditions for storing the counterparty's property and much, much more.
In principle, the methods and forms of establishing a penalty in a work contract are so diverse that they are unlikely to lend themselves to any systematization. Below I will give only some practical advice on how to formulate the terms of a penalty in a contract in order to avoid various kinds of negative consequences or achieve better results.
(1) Rule one: Avoid defining the period for calculating penalties for violation of deadlines for completing work by indicating the date of acceptance by the customer of the overdue obligation as the end date of such a period.
Undesirable wording in the contract: “The penalty is payable for the entire period of delay until the date of actual performance of obligations by the contractor and [acceptance of the work result by the customer]”
What's wrong with this formulation? The fact is that the actual completion of the work, as well as the acceptance of the result of the work in the manner and under the conditions stipulated by the contract, may not happen. The contract may be terminated or terminated for any other reason, actual performance may be carried out by a third party with subsequent claims of damages to the counterparty contractor, etc.
It is interesting, for example, that in the English legal system the court may even conclude that such liquidated damages clauses do not apply to a situation where the work is not completed/or is not accepted by the customer. Thus, in the case of Triple Point Technology Inc v PTT Public Co Ltd [2019], the court directly indicated this, refusing to collect liquidated damages for late completion of work to the customer, since under the terms of the contract such damages (some analogue of our penalty) were subject to accrual before acceptance the result of the work by the customer, and the corresponding work was never accepted (“...if the contractor did not hand off work to the employer and there was no completion, article 5.3. could not apply to any uncompleted work”).
I hope we should not expect anything like this in our judicial practice. However, questions may potentially arise, for example, upon termination of the contract or upon its termination for other reasons (in particular, novation).
And there seems to be no need for such a formulation. According to paragraph 65 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7 “On the application by courts of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations” (hereinafter referred to as Resolution No. 7), “within the meaning of Article 330 of the Civil Code of the Russian Federation, the plaintiff has the right to demand an award penalties until the day of actual fulfillment of the obligation (in particular, actual payment of funds to the creditor, transfer of goods, completion of work).” This clarification can be used if necessary.
(2) Rule two: Settle in the contract the issue of the ratio of penalties for violation of intermediate and final deadlines for the completion of work.
Recommended wording in the work contract: “When calculating the penalty for violating the deadlines for completing the work established by the Contract, the penalty is accrued for violating each Interim Deadline for the Completion of Work provided for in the Contract, separately, until the fact of violation of the Final Deadline for Completing the Work occurs. From this moment, only a penalty will be charged for violation of the Deadline for Completion of Work."
It is no secret that construction contracts often stipulate not only the initial and final deadlines for the completion of work. For the customer, it can also be of great importance to complete the work within strictly established intermediate deadlines. The establishment of such deadlines is expressly permitted by law: paragraph 1 of Article 708 of the Civil Code of the Russian Federation provides that the construction contract specifies the initial and final deadlines for the completion of work, and may also indicate deadlines for the completion of individual stages of work (intermediate deadlines).
Unless otherwise established by law, other legal acts or provided for by the contract, the contractor is liable for violation of both the initial and final, as well as intermediate deadlines for the completion of work (ibid. in the law).
Accordingly, in the contract, the parties often establish a penalty (penalty) for late completion of work, both in relation to the interim and final deadline for the transfer of the result. At the same time, the size of such a penalty is usually different - for violation of intermediate deadlines the penalty is less; For violation of the deadline, the penalty is usually set at an increased rate, since it is assumed that the completion date of the work is of greater importance to the customer. In addition, the parties often set different limits for penalties in relation to intermediate and final deadlines for the execution of work and, accordingly, different bases for calculating penalties (the cost of the stage of work in respect of which a violation was committed (for intermediate deadlines) or the price of the entire contract (for the final deadline works).
At a certain point in the execution of a contract, a violation of one term (interim) can occur, and often occurs, to be “superimposed” on the violation of another (final). Let’s say the contractor violated the deadline for completing a stage of work, which was supposed to be completed by November 1, and then, without completing the work at the corresponding stage, violated the deadline for completing the work (for example, December 31). Let's say on January 10 of the next year there will be a delay in relation to both the intermediate deadline (70 days) and the final deadline (10 days). Moreover, in the period from January 1 to January 10, one violation is “superimposed” on another. It appears that in this case there are potentially the following options:
(a) make a claim for payment of the penalty for each of the terms separately;
(b) declare the amount of the penalty only for violation of the deadline (as a more significant violation that also covers violation of the intermediate deadline);
(c) charge a penalty for violating the intermediate deadline until the deadline is violated, and then only charge a penalty for violating the deadline for completing the work?
None of these options are perfect. Essentially, the question comes down to whether in this case we are talking about two independent violations or one.
In principle, judicial practice makes it possible to collect penalties in work contracts simultaneously for violation of both the intermediate and final deadlines (see, for example, the ruling of the Supreme Court of the Russian Federation dated September 2, 2016 N 305-ES16-10451 in case N A40-67581/2015). However, the opposite judicial practice cannot be discounted. Thus, in the decision of the Federal Arbitration Court of the Volga-Vyatka District dated February 13, 2009 in case No. A31-726/2008-20, the court noted that the collection of both a penalty for violating intermediate deadlines and a penalty for violating the final deadline is, in relation to a certain period (period “overlapping” violations of work deadlines), the application of two penalties for the same violation and therefore is unacceptable.
As a result, it seems optimal to fix in the contract the scheme for calculating the penalty in order to remove the risk of its non-collection within the interim or final deadlines and generally eliminate any possible doubts the court may have on this issue. The penalty is charged for violation of each intermediate deadline separately, until the moment of violation of the final deadline for the work. From this point on, an increased penalty (by increasing the percentage, the calculation base (“the entire contract price”), or both) is charged only for violation of the deadline for completing the work.
(3) Rule three: always clearly and directly define what type of penalty is being discussed in the contract.
Recommended wording in the contract: “The penalty established by this Agreement is punitive in nature.”
In our law, a penalty is not only a way of compensating for losses without the need to prove their size, but also an interim, and to a certain extent, a punitive instrument. In the contracting business, penalties are often used as a means of effectively stimulating the contractor to complete work on time, and if a violation of the deadline does occur (which is not uncommon, but rather a general rule), it is a means of forcing the contractor to complete the relevant work as soon as possible and eliminate all deficiencies identified by the customer in order to minimize the negative financial consequences for the contractor of violating the deadlines for completing the work.
At the same time, customers often forget that in order for the penalty established for violating the deadlines for completing work to be of a punitive (read: punitive) nature (that is, it could be collected on top of any other losses of the customer), the contract must contain a direct an indication of this.
Paragraph 60 of Resolution No. 7 establishes that, according to paragraph 1 of Article 394 of the Civil Code of the Russian Federation, if a penalty is established for non-fulfillment or improper fulfillment of an obligation, then the losses are compensated in the part not covered by the penalty (offset penalty). The law or contract may provide for cases when it is allowed to collect only a penalty, but not losses (exceptional penalty), or when damages can be collected in full in excess of the penalty (punitive penalty), or when, at the choice of the creditor, either a penalty or losses (alternative penalty). Thus, the general rule is that the penalty is a credit, not a penalty. To make the penalty punitive in nature, a direct indication of this should be included in the contract.
(4) Rule four: directly indicate if the penalty should be calculated for each case of violation.
Recommended wording in the contract: “The penalty established by this paragraph of the Contract is payable by the contractor for each case of violation recorded by the Customer.”
In contract agreements, penalties are widely used not only for violation of work deadlines, but also for other violations, in particular, for work on the site without a work order, for the contractor’s employees appearing on the site while intoxicated, and for other cases of violation of the regime established by the customer. performance of work.
In this situation, it is fundamentally important to provide in the contract that the established penalty (usually in the form of a fixed amount of a fine) is charged and collected for each case of violation.
Thus, in one of the cases, the contractor was required to provide progress reports. For violation of this obligation, the contract provided for a fine of 100,000 rubles. During the work period, the contractor failed to provide such reports four times. Accordingly, the customer filed a claim for a fine in the amount of 400,000 rubles, calculating such a fine for each violation.
The court, interpreting the terms of the agreement, noted that there is no direct indication that a fine is collected for each case of violation and came to the conclusion that the amount of the fine for a given violation is generally limited to a maximum amount of 100,000 rubles under the agreement, “... no matter how many cases there were no violations." Accordingly, the court partially satisfied the claim, collecting only 100,000 rubles from the contractor (resolution of the Moscow District Arbitration Court dated January 14, 2016 in case A40-80681/15).
Considering that the real intention of the customer in such situations is to prevent these violations during the entire period of execution of the contract, as well as to encourage the contractor to behave accordingly, it is necessary for such cases to directly stipulate in the contract that a penalty will be charged for each case of violation .
And one more note: it is better if the right to record the fact of a violation is given to the customer (even if it is complicated by some procedure established by the contract - for example, recording the fact by a specially created commission). Otherwise, the contractor will dispute the occurrence of the fact or its nature, which will potentially create difficulties in collecting the penalty.
(5) Rule five: Expressly provide for the possibility of deducting a penalty from the amount of any counterpayments by the customer. Do not rely on the offset rule.
Recommended wording in the contract: “The Customer has the right to withhold the amounts of losses and penalties provided for in the Contract from any amounts payable to the Contractor under this Contract, as well as under any other contracts concluded with the Contractor.”
I will not reveal any secret that the courts have long been in the position that the customer has the right to withhold a penalty from the price of overdue work, if this is provided for in the contract. The legality of the condition on withholding the penalty was confirmed by the Presidium of the Supreme Arbitration Court of the Russian Federation in decisions dated June 19, 2012 N 1394/12 and dated July 10, 2012 N 2241/12.
And even now the courts fully and fairly support this point of view (see, for example, the resolution of the Federal Antimonopoly Service of the North-Western District dated March 27, 2017 in case No. A56-23058/2016).
This approach to the contract greatly helps the customer and even allows one to avoid court and grueling enforcement proceedings, which reduces both time and costs.
I will note in the margins that the considered condition of the contract about the possibility of deducting a penalty from payments due to the contractor should be formulated broadly and include, for example, losses among the amounts potentially withheld by the customer.
The question of interest is whether it is possible to do without a special retention clause in a work contract, relying entirely on such a tool as offset, which in this case is essentially implemented.
Some courts still believe that it is impossible to carry out such an offset: it is unacceptable to read the requirement to pay a penalty against the requirement to pay for work, since the first is not of an indisputable nature (the amount of the penalty can be reduced by the courts according to the rules of Article 333 of the Civil Code of the Russian Federation) (On this matter see, for example, Egorov A.V. Offsetting a penalty against the principal debt. How to convince the court of its legality // Arbitration practice for lawyers 2021. No. 10 p. 54).
Of course, such a position is wrong. However, in order to avoid unnecessary disputes and the need to convince the court of the possibility of using offset, it is better not to forget to include this retention clause in the contract.
(6) Rule six: When formulating a limitation on the amount of the penalty, provide for cases when such a limitation does not apply.
The customer often does not pay due attention to this issue and ignores the need to include such conditions in the contract, thereby losing serious legal advantages.
It is known that today it is extremely common practice to limit the contractor’s liability by establishing a certain, maximum permissible percentage ratio of the total amount of the penalty and the contract price (or its corresponding part, for example, the price of a separate stage). Such a limit can be from 5% to 100% of the total contract price, but a market common limit is usually about 20% of the total contract price. Moreover, this limitation includes not only the maximum allowable amount of the penalty, but also the amount of the customer’s losses under the contract.
In addition, the contractor often limits its liability by excluding lost profits and indirect damages.
As a counter defense, the customer can and should use a mechanism to exclude certain violations from the contractual limitation of the contractor's liability.
From the point of view of the legally established limitation of liability in this part, the rule of paragraph 4 of Article 401 of the Civil Code of the Russian Federation applies, according to which an agreement concluded in advance to eliminate or limit liability for an intentional violation of an obligation is void.
At the same time, nothing prevents the parties from establishing in the contract agreement other cases in which the limitation of the contractor’s liability (in particular, the limitation of the total amount of the penalty that can be recovered from the contractor) does not apply. These, obviously, should be cases of the most egregious violations on the part of the contractor, not due to the difficulties of business processes or the peculiarities of the contractor's business activities. In particular, the following options can be used.
- intentional violation by the Contractor of the terms of the Contract;
- violation of the Contract as a result of the Contractor’s gross negligence;
- certain types of violations of the Contract, for example, violation of labor discipline when performing work by the Contractor's employees, violation of the work schedule at the site or labor protection requirements (since this violation may entail serious consequences for the contractor's or customer's personnel);
- violation by the Contractor of the requirements for handling hazardous substances and materials when performing work (since this creates a general danger for both personnel and property, including the property of third parties);
- violation by the Contractor of environmental, migration requirements and restrictions when performing work (as this may entail serious liability for the customer);
- violation of confidentiality conditions, etc.
