Sun explained how to calculate losses during a transaction in foreign currency
The Supreme Court of the Russian Federation (BC) explained that sanctions for violation of the contract are calculated in foreign currency if the price of the transaction was tied to this currency. Earlier, lower authorities took the opposite position on the dispute about losses due to the breakdown of the goods for the US dollars. The fact is that, due to the course of fluctuations, the actually incurred amount of losses in rubles was greater than in dollars on the date of recovery, and the courts preferred ruble damage. But the economy of the Armed Forces recognized the fluctuations in the ruble of the ruble with an entrepreneurial risk, to which the parties to the contract agreed, having tied the price of the goods to foreign currency. Lawyers note the relevance of the issue for foreign trade contracts.
The history of the lawsuit that reached the level of the Armed Forces unfolded around the leasing agreement (financial lease). In December 2022, Gazprombank Autolizing concluded an agreement with an individual entrepreneur, according to which the company was supposed to purchase from the seller LLC Transport Center, the Yutong bus for $ 155.6 thousand and transfer it to the entrepreneur to financial lease. But in the allotted time, the seller did not put the goods, because of which in May 2023 the leasing agreement was renegotted and the goods were purchased from another seller, but at a higher price-at $ 159.3 thousand. At the same time, Gazprombank Liding lost the right to recover the right to recover from the original seller in the form of the difference between the price of the property at the term Deliveries and the cost of the same property under a new agreement.
According to the law, the parties are free in the choice of currency in which the obligation (debt currency) is expressed, however, the actual payment between Russian counterparties should be made in rubles (payment currency) at the official rate on the day of payment, in accordance with Art. 317 of the Civil Code of the Russian Federation (Civil Code).
In December 2023, the entrepreneur filed a lawsuit to recover losses and penalty from LLC Transport Center in the Moscow Arbitration Court. The calculation of losses was based on the amount of overpayment, which arose due to a breakdown of delivery by the first seller and the need to purchase a bus from another seller. If in dollars the amount of overpayment amounted to only $ 3.7 thousand, then due to fluctuations in the exchange rates, the individual entrepreneur paid more than 4.6 million rubles for the goods-it was the plaintiff and asked to recover the ruble amount. In addition to losses, the entrepreneur asked him to award 384.5 thousand rubles. Penies for violation of the duration of the transfer of goods, the calculation of which he also made in the Russian currency.
Risk is a common matter
The arbitration courts satisfied the claims of the plaintiff in full. Rejecting the request of the seller-respondent to calculate the losses and the penalty in US dollars, the courts indicated that this would lead to the recovery of the amount that is much less than really incurred by the buyer of losses. And this, in their opinion, indicates the bias of this calculation. However, the defendant appealed these decisions to the Armed Forces and achieved the transfer of the case to the economy of the rank. As a result, in its decision, the collegium supported the arguments of the seller of the property and canceled the judicial acts of lower instances.
To begin with, the Armed Forces indicated that losses can really not be limited only to the difference in prices for the initial and replacing transaction. But this does not cancel the application of the Rules of the Civil Code on the currency of monetary obligations, since the parties agreed in advance that they would use the US dollar as a debt currency.
Thus, the Sun explained, the parties “assumed the possible risk of fluctuations” in both one direction and the other.
The emergence of a course difference that is unusual for the buyer when calculating losses and forfeits in US dollars, the Armed Forces called « ordinary entrepreneurial risk. » As a result, the economy colleague recognized that sanctions for violation of the contract, payment under which is tied to foreign currency, must be calculated in the same currency, and pay in rubles at the official rate on the day of payment. To accurately determine the period of calculating the penalty and its amount, the case is aimed at a new consideration.
Freedom of contract or actual losses
“The issue of fluctuations in currency courses regularly rises in the practice of ships, for example, we can recall the disputes caused by the fall of the ruble exchange rate in 2014-2015,” said Gurichev, Malinin and Partners, Gleb Gavrilin, senior lawyer. Aleksey Nekrasov, Advisor to the Legikon-Law, says that almost all contracts for products from abroad provide for prices in foreign currency: “This is typical for all foreign economic contracts, and not just concluded in recent years.” Nariman Huseynov, lawyer of the K&P.Roup dispute resolution practice, notes that “in conditions of high volatility of the course, the use of a currency reservation in leasing agreements acquires b.Othe importance of importance, especially when financing imported equipment. ” Such a reservation fixes course risks, ensuring the stability of leasing payments, and guarantees the receipt of foreign exchange earnings, protecting from possible losses during converting, explains Mr. Huseynov.
At the same time, lawyers express different opinions about the need to calculate losses and penalties in the same currency in which payment under the contract was on.
Georgy Sukhov, a legal adviser to the Rustam Kurmaev and partners, agrees with the Armed Forces that entrepreneurs as professional market participants “cannot but understand the risks that are fluctuations in currency rates”, therefore, “links of one of the parties to the changed circumstances” are a departure from contractual conditions. Mr. Gavrilin also believes that the Armed Forces occupied a « consistent and predictable position. »
Meanwhile, the Forward Legal lawyer Denis Khairullin considers the economy colleague the approach to the controversial. In his opinion, « it will be fair to compensate the buyer to fully actually incurred expenses, including the course difference. » Nariman Huseynov believes that the currency reservation applies only to the fulfillment of a monetary obligation under the contract, but does not affect the “protective legal relations that arise in connection with the violation of the contract”. Otherwise, this contradicts the principle of complete compensation for losses, Mr. Huseynov explains: “In case of improper execution of the contract, all the risks associated with a change in the market situation should be assigned to the side that has committed the violation.” Moreover, according to Alexei Nekrasov, the arbitration courts previously “focused on the losses actually incurred by the injured party”, and the recovery of losses in the currency of the contract “will lead to the emergence of new disputes”.
