According to him, the business every time you will have to separately prove that the pandemic and restrictive measures prevented it from fulfilling its obligations to partners or in time to file a complaint in court. Meanwhile a citizen in order to restore the Statute of limitations, it will suffice to refer to a mode of self-isolation.
Lawyers and the business community was waiting for clarification of the Supreme court as to whether the pandemic is force majeure. The review has removed any doubts or questions left?
Alexey Sikaylo: Russia’s Supreme court has given a logical and timely clarification. They will definitely help in legal disputes that will inevitably arise after the end of the pandemic. In fact, such disputes do arise. But the survey does not give a clear answer to consider or not the pandemic is force majeure. Here much is left to the discretion of the courts, which in each case should be dealt separately. Clean force majeure no.
what’s the help?
Alexey Sikaylo: there was a risk that the courts will automatically refuse recognition of the restrictions imposed by force majeure. Measures that are taken today, is unique in many ways. On the one hand, this is emergency measures, many legal structures are used for the first time. In fact many are now created from scratch. As one of the speakers at the recent St. Petersburg international legal forum, take action today worldwide, this large-scale pilot justice project. Because from a formal point of view, the restrictions are not classic force majeure. The reality is, of course, force majeure. It is therefore very important that the Supreme court gave this installation the lower courts not to dismiss, but to understand.
Now explain why it is important to prove that there was force majeure.
Alexey Sikaylo: Force majeure exempt from liability.
So, you can take the money, but in the case of force majeure’s nothing to do, and keep the money yourself?
Alexey Sikaylo: No, of obligations force majeure does not exempt only from liability: fines, penalties, etc. If the customer does not agree to delay the performance of obligations or the execution of the contract will be impossible, for whatever reasons, the money will have to return. With the exception of funds already spent on the implementation of commitments. But the sanctions that the contract is not fulfilled, the overlap will not.
What expenses does not have to return?
Alexey Sikaylo: for Example, a person has created a product for the customer. Received an advance, which purchased the materials. Paid a salary to employees who worked on the execution of the order. And then came the emergency circumstances. For example, sacustico product was needed in the moment. Once the time came, the need was gone, so he refuses to postpone the execution of the contract. In this case, the money spent on the purchase of materials and wages will not be returned. But all expenses must be documented. The remains are returned to the customer. In addition, if the order fulfillment process, and not done, it created something that represents a single value, it must also be transferred to the customer. Otherwise, you may be sued for the return of unjust enrichment. But the main – the contractor is relieved of liability for fulfillment of the order.
the Costs of performing the outstanding order will be losses of the customer…
Alexey Sikaylo: In this situation, all bear the loss. The contractor will not get the profits, which was expected. The time he spent, remains unpaid. And while more money, it is not compensated. The customer will lose part of the funds spent on the execution of the work, which can become unnecessary. So nobody will win, most likely: few people will be able even to break even.
Why not negotiate and just move the delivery time?
Alexey Sikaylo: I Think many will go this path: be to agree on the performance of the obligations at a later date. But there are different situations. Sometimes the customer really loses relevance, and it is better to return at least part of the spent than to bring the contract to end. In such a situation, the customer is tempted, on the contrary, try breaking the contract, knock of contractor fines and penalties. And thereby to compensate for the loss and then earn. Therefore, it is expected the shaft of trials, where one side will argue that to fulfill the contract was prevented by force majeure, and the other is that even in a pandemic, the partners were able to fulfill the order, but not fulfilled, and therefore must pay a fine. Actually, such disputes have already been launched: see it in their practice, receive lots of calls.
classic Because of force majeure, as you said no…
Alexey Sikaylo: Is the Supreme court said.
Well, the Supreme court. But, since there is no unconditional force majeure that will have to prove to the parties?
Alexey Sikaylo: the Party that cannot fulfill the obligations, proves that circumstances are objective and do not depend on it. There can be many nuances. For example, a certain contractor because of the nature of its operation mode isolation in itself could not prevent to do the job. But he could not buy the necessary materials, because the vendors just because of the imposed restrictions been able to deliver the goods. That is, a man brought a third party, and that if to argue theoretically, can also be considered a force majeure event. So the lawyers will form a big burden. The businesses I would now recommend a more careful approach to the selection of documents that describe the situation, condition of Finance, to document each step. Turned over the required materials and are unable to? Document. And so on.
are There any businessmen who have no problems?
Alexey Sikaylo: Probably have, but their range is quite narrow. Almost all of the limited possibilities of movement. Everyone know, there were problems. If to argue theoretically, that some structures have not any problems. But they may have problems of delayed payment for services rendered.
what about those who have procedural deadlines expire these days?
Alexey Sikaylo: a Review of the Supreme court quite clearly said that the recovery period is possible. The right to procedural protection is indisputable. In fact, the courts are recommended to prolong the terms.
a Statute of limitations? If someone does not have time to file a lawsuit these days, time will be spent?
Alexey Sikaylo: citizens quite clearly explained that the restrictive measures can be considered as a good reason for missing the Statute of limitations. So it will be enough to refer to a mode of self-isolation. And in respect to legal entities other approaches. It is necessary to consider the specific circumstances why the company was unable to file a claim. Because the courts stopped only a personal welcome, but papers accepted in the regular mail and via the Internet. It is assumed that the legal entities act more professionally so they will have to explain what prevented them in time to file a claim and why these circumstances it is necessary to acknowledge respectful. Rather, the courts in this matter will look more leniently. But nevertheless, still can be a problem, practice will show. Therefore, legal entities need to be careful.
