Lost profit in the Civil Code of the Russian Federation. Collection, settlement

Practice shows that courts willingly satisfy claims related to lost profits if the position of entrepreneurs is justified by specific facts and supported by strong evidence.

In this article we will consider the following questions:

What is lost profit
Frequent situations related to lost profits
How to prove lost profits
Claim to the counterparty and statement of claim to the court
Judicial practice and conditions for satisfying a claim
Calculation of lost profits
What cannot be recovered as lost profits

What is lost profit?

Lost profits are funds that a person should have received, but did not receive due to the illegal actions of third parties. Lost profits are different from actual damages. In the second case, the person expects real costs associated with damage to his property. Real damage presupposes a deterioration in the present financial situation. Lost profits imply that a situation does not improve when it should have improved. This is lost income. The definition is contained in Article 15 of the Civil Code of the Russian Federation. Let's look at examples of lost profits:

A person plans to rent out an apartment. Neighbors flooded their home. For this reason, the landlord cannot rent out the apartment, meaning he misses out on the expected profit. The costs of restoring the home will be considered actual damage.
The company ordered a batch of products. The supplier failed to deliver the goods on time. For this reason, the organization did not receive the profit that it could have received from selling a batch of products.
The taxi driver got into an accident through no fault of his own. The vehicle is damaged. Consequently, the taxi driver did not receive the funds that he could have received from his work. These funds are lost profits. The cost of restoring the car will be considered real damage.

Cases involving the recovery of lost profits are considered the most difficult because it is extremely difficult to prove the amount of income that could have been received. In addition, it is difficult to prove that the person should have received any funds at all.

Question: Is it possible to recover lost profits if the equipment installed by the contractor breaks down, but the warranty period has not passed? View answer

Normative base

The possibility of recovering lost profits is stipulated by such regulations as:

Civil Code of the Russian Federation.
Order of the Ministry of Emergency Situations No. 482.
Order of Gosgortekhnadzor No. 175a.
Government Decree No. 262 of May 7, 2003.
Federal Law No. 35 of March 26, 2003.
Federal Law No. 7 of January 10, 2002.
Order of the State Committee for Ecology No. 81 of February 11, 1998.
Letter from the State Tax Service dated February 22, 1996.
Letter from the State Tax Service dated June 25, 1997.
Federal Law No. 108 of July 18, 1995.

Each of the regulations regulates a separate area, for example, compensation for lost profits in transactions with land participants. The definition of lost profit is contained in Article 15 of the Civil Code of the Russian Federation. This, on the basis of paragraph 2, is lost income that would have been received by the plaintiff under ordinary turnover conditions. Ordinary conditions mean a situation in which no illegal actions occurred.

Question: Can an organization create a reserve for doubtful debts in tax accounting based on a court decision on compensation for losses, including actual damage and lost profits? The receivables arose due to the failure of the counterparty (attorney) to fulfill obligations under the agency agreement, and the legal process lasts more than a year. View answer

Moral damage and its compensation

Correlation of the concepts “harm”, “damage”, “loss”

In the legal literature, along with the term “losses”, other concepts are used - “harm”, “damage”, which are not unambiguous and strictly defined.

In civil law it is proposed to distinguish these terms as follows:

harm is a generic concept of negative property consequences of an offense;
damage is a natural and material form of expressing harm;
damages are a monetary assessment of harm.

Harm is divided into:

property.

Property damage is negative consequences expressed in a decrease in the property of the victim as a result of a violation of his right or benefit. According to current legislation, property damage is subject to compensation in kind or cash (compensation for losses).

Moral harm is “moral and physical suffering caused by actions (inaction)

encroaching on intangible benefits belonging to a citizen from birth or by force of law (life, health, personal dignity, business reputation, privacy, personal and family secrets, etc.) or
violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with the laws on the protection of rights to the results of intellectual activity) or
violating the property rights of citizens” (in cases specifically provided for by law - Article 1099 of the Civil Code of the Russian Federation).

(Clause 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 20, 1994 No. 10 “Some issues of application of legislation on compensation for moral damage”)

In case of violation of property rights, moral damage is subject to compensation only in cases specifically provided for by law. Such cases are provided for, in particular, Art. 1251 of the Civil Code, the Law of the Russian Federation of February 7, 1992 “On the Protection of Consumer Rights,” etc.

Grounds for compensation for moral damage (Article 1100 of the Civil Code of the Russian Federation)

Moral damage is an independent consequence of violation of the rights of citizens, therefore it can be compensated independently, regardless of the presence of property damage or together with property damage.
As a general rule, moral damage is compensated if the causer is at fault.

Compensation for moral damage is carried out regardless of the fault of the tortfeasor in cases where:

harm was caused to the life or health of a citizen by a source of increased danger (Article 1079 of the Civil Code);
harm was caused to a citizen as a result of his illegal conviction, illegal prosecution, illegal use of detention or recognizance as a preventive measure, illegal imposition of an administrative penalty in the form of arrest or correctional labor (Article 1070 of the Civil Code);
harm was caused by the dissemination of information discrediting honor, dignity and business reputation (Article 62 of the Civil Code);
in other cases provided by law.

How to prove the existence of lost profits

Going to court to recover funds involves collecting evidence in support of your claims. You need to prove these facts:

Lack of income.
There is a violation of rights.
There is a connection between the illegal act and lost profits.

Documents and witness statements can be presented as evidence.

Question: Are demands for recovery of lost profits legal if, as a result of the issuance of an act of a state body, the obligation has ceased in whole or in part? View answer

Presence of violation of rights

Lost profits arise due to the following cases of violation of rights:

Failure to fulfill obligations stipulated in a written agreement.
Causing damage to the plaintiff's property.
Causing harm to health.

Violation of rights in itself does not indicate anything. It must entail the non-receipt of funds that the person could actually receive.

Causal relationship

There must be a cause-and-effect relationship between the violation of the right and lost profits. Its presence is determined by the following criteria:

The person's right was violated before the loss occurred.
Violation of the law caused loss of income.

Moreover, the plaintiff needs to prove in court that he has taken all measures to reduce the amount of losses. If it was impossible to take these measures, this impossibility must be proven.

FOR YOUR INFORMATION! Measures to reduce lost profits must be reasonable. Otherwise, the court will not take them into account. However, the law does not specify a list of measures that must be taken. Therefore, the person must independently determine the procedure for reducing the size. Let's look at an example of the plaintiff's actions. The person was supposed to repair the car, but did not do so, which resulted in lost profits. In this case, the plaintiff may require the car mechanic to pay for consumables and related expenses.

How to recover damages? Current positions of judicial practice that will help in court

Despite the fact that the reform of the Civil Code of the Russian Federation has lowered the standard of proof in disputes about the recovery of losses, in practice it is still difficult to prove them. Courts award plaintiffs on average only 39% of the amounts claimed. What positions of judicial practice on damages should participants in disputes pay attention to? Is it possible to limit the scope of liability in a contract?

They say:

Vera Richterman,

Partner in the judicial and arbitration practice of Egorov, Puginsky, Afanasyev and Partners Law Firm

Vladimir Rodionov,

lawyer in judicial and arbitration practice at Egorov, Puginsky, Afanasiev and Partners Law Firm

Recovery of damages is a universal way to protect a violated right. However, today business is experiencing difficulties in proving both the fact of causing losses and their size.

When a large-scale reform of the Civil Code of the Russian Federation was carried out 6 years ago, it seemed that the situation with the recovery of losses should improve and they would become a more effective tool for protecting the interests of business. However, today there are still many questions.

ON A NOTE

Judicial statistics show a gradual, very significant decrease in the number of disputes regarding the recovery of damages from contracts since 2021.
In 2021 there were about 9 thousand of them - this is 3 times less than in 2021. Over the past 5 years, on average, the courts have satisfied about 75% of claims for damages. It's a good news. However, there is also a bad thing: on average, courts recover only 39% of the amounts of declared claims, that is, significantly less than half.

This suggests that:

the business has difficulty proving losses,
business trusts this institution less and less, preferring alternatives, such as collecting penalties.

Common cases of recovery of damages

Breach of contract, including the future . The most common case of recovery of damages is a breach of contract (for example, the counterparty did not deliver the goods or delivered the goods of inadequate quality). The violation can be either past or future: if your counterparty obviously cannot fulfill the agreement, you can refuse this agreement and recover damages from it (Clause 2 of Article 328 of the Civil Code of the Russian Federation). For example, if the customer understands that the contractor will not have time to complete the building on time, he refuses the contract and recovers damages from the contractor (Clause 2 of Article 715 of the Civil Code of the Russian Federation).

Making false representations is another example of a potential damages recovery situation. Moreover, in commercial contracts, losses can be recovered even if the counterparty did not know that his assurances were unreliable (clause 4 of Article 431.2 of the Civil Code of the Russian Federation).

Breach of Fiduciary Duty . We are talking, first of all, about liability within the framework of corporate relations - recovery of losses from the company's management and controlling persons (Article 53.1 of the Civil Code of the Russian Federation).

Causing non-contractual harm . There are typical situations, for example, violations of intellectual rights, when the patent holder demands to recover damages. But there are also non-standard cases.

CASE STUDY

The court made a decision recognizing the plaintiff's ownership of the premises on the basis of forged documents.
When it became clear that evidence had been falsified, the losing party was able not only to return its property, but also to recover 10 million rubles in damages from the plaintiff. This was lost profit resulting from the losing party being deprived of the right to use their property for 4 months. Ruling of the Supreme Court of the Russian Federation dated December 20, 2018 No. 305-ES18-14652 in case No. A40-135360/2017

Compensation for losses caused by lawful actions. We are talking, among other things, about losses caused to a person in connection with the exercise by his counterparty of the right to arbitrarily refuse the contract (for example, Article 717 of the Civil Code of the Russian Federation).

The given grounds do not exhaust the possible cases of recovery of damages. This is a universal method of protection that can be used in a variety of situations.

Real damage and lost profits

Losses are divided into actual damage and lost profits.

At first glance, this division seems purely theoretical, but in fact it also has practical consequences, for example:

claims for recovery of lost profits are not taken into account when determining the signs of bankruptcy (clause 2 of article 4 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”),
within the framework of bankruptcy, claims for recovery of lost profits are subject to subordination (clause 3 of Article 137 of the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”),
recovery of lost profits is often blocked by law (for example, in an energy supply agreement under clause 1 of Article 547 of the Civil Code of the Russian Federation) or by contract.

In this regard, there are often disputes in the courts in which a party tries to prove that its losses are actual damage and not lost profits.

Actual damage may include:

costs associated with breach of contract. For example, the counterparty did not deliver the goods, and therefore the ship is idle at the port - you can recover damages for the demurrage of the vessel;
expenses for concluding a replacement transaction: the supplier promised to sell 100 units of goods at 100 rubles each, but did not fulfill the agreement. A week later, the buyer had to purchase the same quantity of goods for 120 rubles per piece. A delta of 20 rubles per piece is the amount of damages that the buyer can recover from the first supplier;
the value of the destroyed property;
costs of restoring rights, in particular costs of repairing damaged property.

ON A NOTE

If, due to the fault of a counterparty, a person was unable to participate in a closed competition, will it be possible to recover losses?
The Russian court will most likely refuse to collect. There is an institute for recovering damages for lost chances abroad. If 4 companies took part in a closed competition, then the fifth participant, who was unable to participate due to his counterparty, would have a 20% chance of winning. He lost the chance to participate in the competition due to the fault of the counterparty, so he could have collected 20% of the contract amount from him.

Lost profits are income not received due to a violation. Often the lost profit is many times greater than the actual damage. Therefore, when recovering damages, the problems of proving lost profits and their calculation become of particular importance.

There is an important nuance: Art. 15 of the Civil Code of the Russian Federation allows for the recovery from the violator of income that he unlawfully received in connection with the violation. For a long time, there was no understanding in practice of how exactly to interpret this norm:

as an independent method of protecting rights, or
as a way to calculate lost profits?

If this is an independent way of protecting a violated right, it is enough for the plaintiff to prove the fact of violation of the right, the receipt of income by the defendant and their amount.

If this is a method of calculating lost profits, then it is necessary to additionally prove that in the absence of a violation the victim himself could have received these incomes.

The answer to this question appeared in practice only two months ago.

CASE STUDY

The holder of the patent for the fitting - a pipeline part - found out that another company produced a similar, counterfeit product without permission, put it into circulation and even won two procurement competitions.
The patent holder went to court to recover from the infringer the illegally received income from participation in competitions. The courts have been considering this dispute since 2021, and only recently the RF Supreme Court put an end to it. He refused to recover illegal income from the offender, including because the plaintiff did not take part in one of the competitions, and could not have won the other even if the defendant did not participate in it. This means that he, in principle, had no opportunity to receive the benefit that he considered lost.

Ruling of the Supreme Court of the Russian Federation dated April 13, 2021 No. 309-ES17-15659 in case No. A34-5796/2016

Thus, the Supreme Court of the Russian Federation took the position that the recovery of illegal income is not an independent method of protecting the right, but a method of calculating lost profits. Plaintiffs should pay attention to this and show maximum procedural activity when proving their losses.

Standard of proof of damages

The scope of proof of damages includes:

presence of losses,
fact of violation of obligation/causing harm,
the fact that the defendant is the person who caused the damage,
amount of losses,
a causal relationship between the opponent’s actions and the occurrence of losses.

At first, it seemed that the reform of the Civil Code of the Russian Federation lowered the standard of proof in claims for damages. Provisions have appeared that soften this standard when proving the amount of damages and causation. Now the plaintiff does not have to prove these circumstances with 100% certainty - he can prove them with a reasonable degree of certainty. And if the amount of damages cannot be justified even taking into account this rule, the court itself determines the amount of adequate compensation (Part 5 of Article 393 of the Civil Code of the Russian Federation).

However, the idea of lowering the standards of proof should not entail procedural passivity on the part of the plaintiff. Proving the fact of incurring losses is still very difficult.

CASE STUDY

In one case, under a municipal contract, the contractor was required to build a bridge across the Ob River in 3 years.
The customer did not provide the site for construction in a timely manner, so this period was extended by another 2 years. The contractor realized that during the 2 years of delay, the cost of construction materials had increased significantly due to inflation. The difference amounted to 2.5 billion rubles. Therefore, he filed a claim against the customer to recover this amount as his damages. To substantiate his claims, he brought to court an expert opinion.

The case was considered for two years, and in the end all authorities, including the RF Armed Forces, rejected the contractor’s claim. They considered that the plaintiff did not prove the fact of incurring losses. Prices could indeed rise, but the contractor could buy materials in advance and store them in a warehouse, then there would be no losses.

The contractor could not prove that he actually bought the building materials later and at a higher price.

Ruling of the Supreme Court of the Russian Federation dated November 28, 2017 No. 304-ES16-10810 in case No. A45-21067/2014

Scope of responsibility

The defendant can minimize the damages recovered from him at two stages:

in advance - when structuring the transaction,
if it comes to an acute conflict - in court.

When structuring a deal, you can:

fix in the contract your own methodology for calculating losses - the principle of freedom of contract allows this;
provide for a maximum amount of compensation (for example, no more than 30% of the contract amount);
provide for a minimum amount of compensation (for example, that you will not be bothered by claims and lawsuits if the losses are less than 10 thousand rubles);
agree on a non-collection clause for certain damages (for example, lost profits);
provide for an exceptional penalty.

Please note: all these methods and clauses will not work in the event of a deliberate violation of obligations - they will be void (clause 4 of Article 401 of the Civil Code of the Russian Federation).

In addition, if the methodology for calculating losses provided for in the contract does not correspond to economic realities and differs greatly from actual losses, the court may

use by analogy the rules on the inadmissibility of limiting liability for intentional violations - if the losses calculated under the terms of the contract turned out to be unreasonably underestimated;
apply the rules of Art. 333 of the Civil Code of the Russian Federation and, with a corresponding application from the defendant, reduce the amount of compensation - if the formula provided for in the contract unreasonably increases the amount of losses, bringing them closer to the penalty regime.

To minimize the amount of liability in court, you need to:

take an active procedural position,
provide an alternative calculation of lost profits,
show that a significant amount of damage was caused, among other things, by the actions of the plaintiff himself,
justify that the opponent did not take reasonable measures to reduce the amount of losses.

For example, in the above dispute about the construction of a bridge across the Ob, the court referred to the fact that the plaintiff continued to build the bridge, knowing that the cost of building materials would rise, while he could have simply refused the contract.

Prepared based on the materials of the online discussion “On losses globally: how to calculate, prove, recover and use to challenge transactions”, organized by Egorov, Puginsky, Afanasyev and Partners

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Calculation of lost profits

There is no single formula for calculating lost profits. The specific method of calculation is determined depending on the reasons that led to the loss and the form of relations between the plaintiff and the defendant. When calculating, reasonable expenses are taken into account that the plaintiff would have incurred if no offense had been committed against him.

Let's look at an example. The defendant did not deliver consumables on time, which resulted in lost profits. In this case, the lost profit will be calculated based on the cost of the finished product, for the manufacture of which consumables were needed. In this case, the costs of delivering these materials are deducted.

Let's consider the average type formula:

HC = DRNP – IR – NI

The formula uses these values:

LP – lost profit.
DRNP – funds received from the sale of unproduced goods.
IR – selling costs.
NI – tax costs.

When calculating, these components are taken into account:

Income lost due to illegal actions.
Damage (means needed to eliminate the damage).
Various costs: lawyer services, appraisal company.

IMPORTANT! It is extremely difficult to independently determine the amount of lost profits. If the calculations are not justified, the court will not take them into account. It is recommended to contact an appraisal company. The specialist not only determines the amount of lost profits, but also describes all the components of the calculations. Appraisal firms must provide all official documentation. Who should pay for the services of appraisers? If the plaintiff wins the case, all associated costs (including attorneys' fees) are borne by the defendant.

Nuances that need to be taken into account when calculating

When making calculations, you need to take into account the following features:

Sometimes lost profits result from the guilty actions of several persons. In this case, it is necessary to calculate the amount of damage caused by each participant. In the event that the calculation cannot be made, the amount of lost profit is divided among all participants.
The amount of compensation sought includes expenses that the plaintiff incurred as a result of proving the existence of lost profits. These are expenses for the services of an appraisal company, a lawyer, expenses for sending notices, registered letters.
In order to recover compensation for expenses, the plaintiff must retain all receipts and receipts. This will allow you to prove the existence of all expenses.
To assess the amount of lost profits, you need to study all the nuances of the enterprise. The assessment is made on the basis of documents.
If, due to the defendant's culpable actions, products are not produced in sufficient quantities, lost profits will include the cost of the unreleased goods.
If, as a result of guilty actions, the quality of the product has deteriorated, the cost of the product is reduced. In this case, the defendant must pay the difference between the potential and actual value.

The only way to recover lost profits is to go to court.

Features of recovery of lost profits

To recover funds, you need to contact a judicial authority. However, this is only possible under the following conditions:

The plaintiff must have all the documents that prove the existence of lost profits and its size.
The plaintiff will have a chance in court only if he proves that all measures have been taken to reduce the amount of lost profits.
All contracts on the basis of which lost profits were formed must be drawn up correctly. For example, the supplier missed the delivery deadlines for component materials, as a result of which the seller did not earn the money that he should have earned. In this case, there must be a correctly drawn up agreement between the supplier and the seller. It should indicate the cost of components, transportation costs, and delivery times. The seller must provide documents from which the sale price of the product can be determined. It is also necessary to document the fact that the deadlines were missed. The seller can also present papers stating that he had to purchase components from another supplier at a higher cost.
If the defendant refused to bear his obligations under the contract, that is, illegally terminated the agreement unilaterally, this fact must also be proven. This will confirm the person’s unlawful actions.

ATTENTION! Before going to court, you need to assess your chances of winning the case. This can be done by analyzing the available documents confirming the plaintiff’s claims. If there are no such documents, it is not recommended to go to court. This is due to the fact that the plaintiff will not receive compensation, but he will have to spend on court fees and lawyer’s services.

What documents must be provided to the plaintiff?

The following documents can be provided as evidence:

Shipping documents.
Papers confirming the fact of payment (invoices, receipts).
The act of acceptance and transfer.
Checks, receipts, certificate of availability of funds in the account.
Agreement on the supply of products, repairs, rental.

The main document on the basis of which collection occurs is the agreement between the plaintiff and the defendant.

In what cases will it be difficult to prove the fact of lost profits?

Cases involving the recovery of lost profits are considered complex. Often the court denies the plaintiff compensation for damages. A refusal is often issued under the following circumstances:

There are no documents proving the fact of lost profit and its size.
There are no documents proving the defendant's unlawful actions.
The agreement between the plaintiff and the defendant lacks information from which one can draw a conclusion about the amount of lost profits.
The defendant provided irrefutable evidence of his innocence.

If the court issues a refusal, the plaintiff has two options for further action: accept the refusal or file an appeal. Upon further consideration of the case, you need to collect more evidence that you are right.

Limitations on Damages

Guaranteed freedom of contract allows citizens to enter into contracts on any terms, as long as these terms do not contradict the law. Thus, limitation of damages is possible either by the terms of the contract or by the law itself.

Certain branches of law limit the amount of liability for damage. For example, compensation for losses by an employee should not exceed his average monthly earnings. Even if the contract specifies a different amount of compensation for damages, the mandatory rule of law will apply.

Also, the amount of damages may be specified in the contract itself. For example, damages caused are subject to compensation, but not more than 10% of the amount under the contract. Or the amount of compensation may be specified as a fixed amount. Also, contractual obligations often separately limit the type of losses subject to compensation - compensation only for actual damage.

The court's position regarding cases of lost profits

The court is very careful in cases of recovery of lost profits. Previously, judicial authorities often refused to satisfy claims due to the fact that the plaintiff’s lost profits were exemplary in nature. In this regard, changes were made to the Civil Code stating that lost profits can be approximate. This cannot be a reason for refusal. Let's consider special cases from which we can understand the position of the courts:

Due to the unlawful actions of the defendant, the plaintiff was unable to continue renting out the premises. In this case, the landlord can recover rent from the person at fault.
The plaintiff's land plot was seized for state needs. The amount of lost profits is determined based on the nature of the use of the site before the seizure.
If the debtor terminates the agreement with the creditor unilaterally, he must compensate for lost income. At the same time, the creditor must not illegally enrich himself. Lost profits are determined based on the interest on the loan.

It can be said that at the moment more and more claims of plaintiffs regarding compensation are being satisfied.

Conditions for indemnification

Damage can be expressed in two forms - material and moral. Material damage is of a property nature, i.e. for example, situations related to damage to private property or refusal to transfer something under a contract (For example, the most common case arises with debt obligations - a claim for the collection of funds is a constant issue for consideration in court). Based on judicial practice, we can conclude that bona fide compensation for losses caused by the guilty party is extremely rare. Often, citizens and organizations have to compensate for damage in court, with the involvement of qualified lawyers.

Recovery of moral damages as a separate type of damage to health and personality:

As statistics show, the most common claims are for the recovery of moral damages, and there is extensive practice of such legal situations, for example, in the matter of recovery of moral damages and material damage caused to health in an accident. Moral damage is non-property in nature, it includes violation of human rights in the field of business reputation, as well as such terms as honor and dignity, or the infliction of mental harm to the victim by the actions of the guilty person.

The amount of compensation for moral damage depends on the amount of harm caused by the actions of the perpetrator, the category of private rights and freedoms that were damaged. Compensation for moral damage is the most difficult matter; this issue has many pitfalls, and legal intervention cannot be avoided here; this will greatly increase the likelihood of successful recovery. Based on practice, it is clear that the court’s assessment of moral damage occurs at a maximum of 10% of the amount requested by the plaintiff.

There are also statistics according to which indicators for the recovery of moral damages are increasing in a positive direction. An important role in resolving such situations is played by the business reputation, integrity, professionalism and business qualities of a lawyer. It is advisable to have a good evidence base on the fact of causing moral damage; if it is available, the likelihood of effective recovery increases.

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Is it possible to recover lost profits from an employee?

Sometimes there is a need to recover lost profits from an employee. For example, an employee unlawfully provided a discount to customers. In this case, the store does not receive part of the markup. That is, there is a fact of lost profits. However, it is almost impossible to collect it from the employee. Based on Article 238 of the Labor Code of the Russian Federation, only compensation for direct actual damage can be demanded from an employee. This form of damage assumes that the company's condition has worsened as a result of culpable actions.

Question: A dismissed employee (driver) refuses to return his company car for three months. What damages can the former employer recover from him (damage, lost profits, depreciation, etc.)? Will this be a labor or civil dispute? View answer

Exemption from damages

A person whose actions or inactions caused damage may be released from liability and compensation for damages if they can prove the absence of intent to cause damage and provide evidence of due diligence in performing their actions.

Also, a criterion influencing the release of a person from compensation for losses is force majeure. This criterion is difficult to prove and must have such aspects as inevitability, extremeness, exclusivity, the fact that the parties could not foresee the occurrence of these consequences in their activities. These circumstances may include natural phenomena (such as floods, earthquakes), various military operations, mass diseases, etc.

In addition, after the force majeure circumstances have ended, the debtor must begin to fulfill his obligation. If it is impossible, he is obliged to notify the counterparty about this.

Features of filing a claim

The claim for recovery must include the following information:

Information (telephone, name of the legal entity) about the plaintiff and defendant.
Title of the paper.
The name of the security on the basis of which the lost profit arose.
The main terms of the contract of this document.
The condition that the defendant violated (for example, unilateral termination of the contract).
Illegal acts committed by the defendant.
Justification of the amount of lost profits.
Justification of the cause-and-effect relationship.
Requirements, exact amount of compensation.

The claim must also contain an annex that lists the documents attached to the claim.

IMPORTANT! A receipt for payment of the state duty is attached to the claim.

Limitation periods for damages

When filing a claim for damages, it is important to take into account the deadlines provided for by current civil legislation.

The limitation period begins to count from the moment when a person’s right was violated or from the moment when a person could and should have learned about the violation of his right.

The general statute of limitations for claims for damages is three years. But, as with all rules, there is an exception. Compensation for losses in cases of voidable transactions must be sent within one year.

Losses claimed after the expiration date are not subject to recovery.

If the statute of limitations for damages has expired, it is necessary to analyze whether there are circumstances that can renew the statute of limitations (for example, illness of the applicant, unlawful actions of third parties, etc.)

When does it make sense to hire a lawyer?

The plaintiff can seek help from a law firm. This increases the chance of winning the case. It makes sense to see a lawyer if the following circumstances exist:

The amount of lost profits is large. If it is small, then the amount of the expected compensation will not cover the associated costs.
There is a high probability of winning the case. If the plaintiff does not win the case, he will not receive any reimbursement for the services of lawyers and appraisers.

The plaintiff does not have to order a full range of legal services. It is recommended to entrust a lawyer with drawing up a statement of claim, since the outcome of the case depends on the correctness of the plaintiff’s arguments. You can also contact a professional for advice. The lawyer will assess the likelihood of the outcome of the case and tell you what documents will need to be prepared. However, if there is irrefutable evidence of lost profits and the defendant’s guilt, the plaintiff can handle the case himself.