In late may, the Plenum of the armed forces discussed the draft resolution on the application of the provisions of the Civil code on the termination of the commitments. One of the clauses it was provided that if incurred after conclusion of the contract extraordinary and unavoidable circumstances, the risk of occurrence which is neither one of the parties (including those associated with the decision authorities), constitute objective impossibility of performance, but of a temporary nature, each of the parties in case of loss of the interest is entitled to repudiate the contract – in particular in cases where these factors have led or will obviously lead to a substantial delay.
Against this position was made by the Russian Council of shopping centers, which sent a letter to the President of the Supreme court, asking that the provision be deleted from the document. He pointed out that the recently adopted “anti-crisis” law was regulated relationship of tenants and property owners. After extensive discussion with the business community in the law was spelled out a “compromise” option – leases are allowed to terminate, but only to small and medium businesses of the most affected sectors of the economy, until October of this year and only in the case that a property owner agrees to lower the rent.
there have Been specific decisions, clearly identify the criteria for possible rejection of the Treaty in terms of restrictions for the period of the struggle against coronavirus infection, is celebrated in the RCSC. Proposed in the resolution of the Plenum of the norm, according to the owners of retail space, significantly expanded the ability of tenants to refuse contracts and contrary to the logic of the adopted law.
In the final edition of the resolution adopted on Friday by the plenary sun, the disputed item was changed. “The occurrence of force majeure in itself does not terminate the obligation of the debtor, if the execution remains possible after they have disappeared,” – said in the final text. The party is exempt from damages, or from paying the other party liquidated damages and other penalties caused by the delay in performance of obligations due to force majeure.
the Agreement may provide special rules concerning termination of obligations in case of force majeure, for example, the automatic termination of the contractual relationship if such circumstances or terminated after a certain period of time in circumstances indicates the Plenum of the armed forces.
In the final paragraph of the resolution does not substantially change the current situation, says the President of the NGO “Right to defense” lawyer Andrey Tutunik. The resolution says that the obligation must be executed in that volume.IU in which it is established by the contract, and limitations in business-related coronavirus, the conditions of performance of the obligation itself is not affected. “But data limitations affect the liability of the owner for non-performance or improper performance of the principal obligation, the lawyer says. – Liability is a penalty, penalties, fines and damages. In the case of, for example, to the rental, the situation is as follows: the rent tenant to pay all the same needs, but the penalties and fines for late payment of rent can not pay”. Such a rule and it was set in the Civil code, but were rarely used by the courts. Now the Supreme court expressly stated that in the current situation this paragraph should be used than eliminate the uncertainty in question. “An earlier version of the bill looked more optimistic for many entrepreneurs,” – said Tyutyunin.
“it is clear that the reference to force majeure for termination of the lease unilaterally was a way to circumvent the law, signed by President”, – emphasized in the RCSC. Now the wording has changed – the occurrence of force majeure in itself does not terminate the obligation of the debtor, if the execution remains possible after they disappeared. “This is true, because on June 1 in Moscow, and later in other regionah Russia opened shopping centers. The number of visitors to the shopping center is constantly growing and is approaching dependenices level. The industry is gradually recovering,” says the managing Director of RCSC Oleg Wojciechowski.
