Article 410 of the Civil Code of the Russian Federation provides that an obligation is terminated in whole or in part by offsetting a counterclaim of a similar nature, the due date of which has come or has not been specified or is determined by the moment of demand. For offset, a statement from one party is sufficient.

From this norm, domestic doctrine and, following it, judicial practice derive the following characteristics of offset: reciprocity, homogeneity and enforceability of requirements.

However, the offset has one more feature - the indisputability (certainty) of the requirements. Thus, the Commentary to the UNIDROIT Principles of International Commercial Contracts 2004 states that “the existence of an obligation is determined when the obligation itself is indisputable, for example, when it is based on a valid and executed contract or on a final judgment or arbitration award that is not may be reconsidered."

In this regard, the question arises: is it possible to offset the penalty and the principal debt in the domestic legal order, given that these requirements are homogeneous, and the sign of indisputability (certainty) of claims is not directly defined in the Civil Code of the Russian Federation?

Judicial practice on this issue is ambiguous, but the following position prevails: offsetting the penalty against the principal debt is impossible, despite the homogeneity of these claims, since without a court decision or agreement of the parties, the amount of the penalty is not certain and indisputable. This is explained by the presence of Art. 333 of the Civil Code of the Russian Federation, which provides for the possibility of reducing the penalty in the event of its obvious disproportion to the consequences of violation of the obligation. The amount of the penalty, according to the courts, is confirmed in a court decision or by agreement of the parties.

There is also an opposite position, however, in the judicial acts in which this position is reflected, the issue of determining the amount of the penalty in connection with the possibility of its reduction was not considered.

It is also advisable to note that we cannot exclude the possibility of changes in judicial practice on this issue due to the publication of the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 13, 2011 N 11680/10 in case N A41-13284/09 (hereinafter referred to as the Resolution).

The Resolution literally states the following: “the refinancing rate, in essence, represents the lowest amount of payment for the use of funds in the Russian economy, which is a well-known fact. Therefore, reducing the penalty below the refinancing rate is possible only in emergency cases, and as a general rule should not be allowed , since such a penalty cannot be clearly disproportionate to the consequences of late payment of funds."

Based on this legal position, we can conclude that the offset of the penalty against the principal debt in an amount equal to the refinancing rate is possible, since in this part the amount of the penalty is determined and there is no risk of its reduction below the refinancing rate.

However, whether the courts will come to such a conclusion will only be shown by the further development of judicial practice.

Nevertheless, the foregoing shows that at present, the offset of the penalty and the principal debt is associated with the legal risk of being recognized as unlawful due to the uncertainty of the amount of the penalty.

See, in particular, the Commentary on the Civil Code of the Russian Federation. Part one: Educational and practical commentary (item by article) / Ed. A.P. Sergeeva. – M.: Prospekt, 2010. – Commentary to the article. 410 of the Civil Code of the Russian Federation. SPS "ConsultantPlus"; Commentary on the Civil Code of the Russian Federation (educational and practical). Parts one, two, three, four (item by article) / S.S. Alekseev, A.S. Vasiliev, V.V. Golofaev et al.; edited by S.A. Stepanova. 2nd ed., revised. and additional M.: Prospekt; Ekaterinburg: Institute of Private Law, 2009. – Commentary on Art. 410 of the Civil Code of the Russian Federation. SPS "ConsultantPlus".

Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 N 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-similar claims.”

Principles of international commercial contracts UNIDROIT 2004 / Trans. from English A. S. Komarova. M.: Statute, 2006. P. 287.

Resolutions of the FAS Volga-Vyatka District dated May 11, 2011 in case No. A43-9007/2010, FAS East Siberian District dated December 14, 2010 in case N A19-5570/10, FAS West Siberian District dated May 18, 2011 in case N A45 -12863/2010, FAS Far Eastern District dated 05/10/2011 N F03-1735/2011 in case N A51-8241/2010, FAS Moscow District dated 02/17/2011 N KA-A40/164-11-P in case N A40-88655 /09-12-653.

The parties, having agreed in the state contract on the condition of the customer’s right to reduce the amount payable for the work performed by the amount of the claim in the amount of the accrued penalty for late completion of the work, provided for a condition on the termination of counter monetary claims. This contractual condition does not contradict the requirements of civil law.

Based on the provisions of Article 421 of the Civil Code, the parties are free to enter into an agreement and can determine its terms at their own discretion, except in cases where the content of the relevant condition is prescribed by law or other legal acts.

Since the parties, by mutual agreement, chose such a method of terminating the customer’s obligation to pay for the work performed as withholding the amount of the penalty in case of delay in their completion at the final settlements under the contract, the contractor’s demands for payment of the debt for the work performed as a result of this withholding cannot be satisfied.

PRESIDIUM OF THE HIGH ARBITRATION COURT

RUSSIAN FEDERATION

RESOLUTION

The Presidium of the Supreme Arbitration Court of the Russian Federation, consisting of:

presiding officer - Chairman of the Supreme Arbitration Court of the Russian Federation A.A. Ivanov;

members of the Presidium: Absalyamov A.V., Amosov S.M., Andreeva T.K., Vitryansky V.V., Zavyalova T.V., Ivannikova N.P., Kozlova O.A., Pershutova A.G. , Sarbasha S.V., Slesareva V.L. -

considered the application of the regional state budgetary healthcare institution "Regional Clinical Hospital" for a supervisory review of the decision of the Arbitration Court of the Krasnoyarsk Territory dated 08/11/2011 in case No. A33-7136/2011, the Resolution of the Third Arbitration Court of Appeal dated 11/01/2011 and the Resolution of the Federal Arbitration Court Vostochno -Siberian District dated January 31, 2012 on the same case.

Having heard and discussed the report of Judge T.V. Zavyalova, the Presidium established the following.

Limited Liability Company "Stroytekhniks" (hereinafter referred to as the "Stroytekhniks" company, the company) filed a claim with the Arbitration Court of the Krasnoyarsk Territory against the regional state budgetary healthcare institution "Regional Clinical Hospital" (hereinafter referred to as the hospital) for the recovery of 2,314,535 rubles 40 kopecks of debt under the state contract dated 06/04/2010 N 37/10 (hereinafter referred to as the state contract, contract).

By the decision of the Arbitration Court of the Krasnoyarsk Territory dated August 11, 2011, the claim was satisfied.

By the decision of the Third Arbitration Court of Appeal dated November 1, 2011, the decision of the first instance court was left unchanged.

The Federal Arbitration Court of the East Siberian District, by its Resolution dated January 31, 2012, left these judicial acts unchanged.

In a statement submitted to the Supreme Arbitration Court of the Russian Federation, the hospital requests a supervisory review of these judicial acts, citing a violation of uniformity in the interpretation and application of the law by arbitration courts.

Having checked the validity of the arguments set out in the application, the Presidium believes that the appealed judicial acts are subject to cancellation due to the following.

As established by the courts and confirmed by the case materials, on the basis of the decision of the auction commission dated May 17, 2010 N EA037/10, a state contract was concluded between the hospital (customer) and the Stroytekhniks company (contractor), under the terms of which the contractor undertook to fulfill the customer’s instructions within two months from the date of conclusion of the contract for major repairs of the roof and storm drainage of the hospital catering building in accordance with the auction documentation, and the customer - to accept and pay for the results of the work.

The cost of work under the contract amounted to 5,100,154 rubles 20 kopecks and was subject to payment provided that the work was completed properly and within the time period agreed upon by the parties (clause 2.2 of the contract).

The customer accepted work for a total amount of 5,100,154 rubles 20 kopecks, which is confirmed by acceptance certificates and certificates of the cost of work performed, forms KS-2 and KS-3 dated 07/28/2010, 09/29/2010 and 11/10/2010. The work performed was partially paid for: by payment order dated 01.09.2010 N 839 - 1,272,968 rubles 66 kopecks, by payment order dated 30.11.2010 N 452 - 1,512,650 rubles 14 kopecks.

As the basis for refusing to pay 2,314,535 rubles 40 kopecks of debt, the hospital cited the contractor’s violation of the terms of the contract, which resulted in a delay in the start of work (by 26 days) and its completion. Part of the work in the amount of 3,361,444 rubles 76 kopecks was accepted according to the act dated September 29, 2010 (the delay in completing the work was 55 days), and part - according to the act dated November 13, 2010. In addition, the customer repeatedly sent comments and complaints to the contractor regarding the timing and quality of work, as evidenced by letters dated 06/22/2010, 07/08/2010, 07/16/2010, 07/21/2010, 07/29/2010, 08/19/2010 , from 04.10.2010, from 22.10.2010.

By notification dated November 22, 2010, the customer informed the contractor about the accrual of a penalty in the amount of 2,314,535 rubles 40 kopecks and its deduction from the cost of the work performed.

Considering its right to be violated, the Stroytekhniks company appealed to the arbitration court with this demand.

The courts of first and appellate instances satisfied the company's claim.

Referring to the provisions of Articles 746 and 711 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code, Code), the courts indicated that the basis for the customer’s obligation to pay for the work provided for in the contract is the delivery of the work to the customer by signing acceptance certificates for completed work (forms KS- 2) with the preparation of a certificate of the cost of work performed and expenses (form KS-3). The signing by the hospital of the specified acts and certificates without comments on the volume, quality and cost of the work does not relieve it of the obligation to pay for them in full.

In addition, according to the courts, the customer’s claims against the contractor regarding the timing of the work cannot be the basis for a unilateral reduction in the cost of the work to be paid by offsetting the counterclaim for payment of a penalty for late completion of the work. This requirement can only be implemented by filing a claim for a penalty based on arguments that the contractor has violated the terms of the contract.

The cassation court supported the position of the lower courts, pointing out the possibility of offsetting only claims that are indisputable. The court noted that a penalty by its nature is a way of ensuring the fulfillment of obligations, its amount can be challenged both on the basis of its occurrence and in size, and if there is a dispute, it can be reduced by the court on the basis of Article 333 of the Civil Code.

Since a counterclaim for the recovery of a penalty was not filed, the courts had no grounds for considering the customer’s objections based on the contractor’s violations of the work deadline.

Taking into account the above, the courts concluded that the customer’s obligation to pay for the work performed in the amount of the penalty accrued to him did not cease.

Meanwhile, the courts did not take into account the following.

According to clauses 6.2 and 6.3 of the state contract, if the contractor violates the deadline for the start or completion of work, the customer has the right to deduct from the contract price in the form of a penalty an amount equivalent to 1 percent of the contract price for each day of delay until the start or completion of work. If the contractor fails to complete the entire range of work stipulated by the contract within the established time frame, the amount of the penalty is 1 percent of the cost of the work actually performed. The fact that the contractor violated the terms of the state contract regarding the deadlines for completing the work is confirmed by the case materials and is not disputed by the parties.

In accordance with paragraph 1 of Article 407 of the Civil Code, the obligation is terminated in whole or in part on the grounds provided for by the Code, other laws, other legal acts or agreement.

The parties, having agreed in the state contract on the condition that the customer has the right to reduce the amount payable for the work performed by the amount of the claim in the amount of the accrued penalty for late completion of the work, provided for a condition on the termination of counter monetary claims. This contractual condition does not contradict the requirements of civil law.

The possibility of a court reducing the penalty does not prevent the customer from exercising the right provided for in the contract to terminate the obligation to pay in the relevant part.

When considering a dispute over a contractor's claim for recovery of the unpaid cost of work, the courts had to check the existence of grounds for applying liability for delay in completion of work in the form of a penalty, as well as grounds for reducing it in accordance with Article 333 of the Civil Code in the presence of a corresponding statement from the contractor about the disproportionality of the accrued penalty.

This conclusion corresponds to the legal position expressed in paragraph 5 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 22, 2011 N 81 “On some issues of application of Article 333 of the Civil Code of the Russian Federation”, according to which the write-off at the request of the creditor of the penalty from the debtor’s account (paragraph 2 of the article 847 of the Code) does not deprive the debtor of the right to raise the question of applying the provisions of Article 333 of the Civil Code to the written-off penalty, for example, by presenting an independent demand for the return of what was overpaid (Article 1102 of the Code).

Since the parties, by mutual agreement, chose such a method of terminating the customer’s obligation to pay for the work performed as withholding the amount of the penalty in case of delay in their completion at the final settlements under the contract, the contractor’s demands for payment of the cost of the work performed in the relevant part were not subject to satisfaction.

In addition, when considering the present dispute, the cassation court came to the erroneous conclusion that it was impossible to offset counterclaims for the collection of debt and penalties.

According to paragraph 1 of Article 330 of the Civil Code, a penalty (fine, penalty) is an amount of money determined by law or contract that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment.

The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 7 of the information letter dated December 29, 2001 N 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-similar claims” explained that Article 410 of the Civil Code does not require that the requirement for offset arise from the fact the same obligations or from obligations of the same type.

Counterclaims for the payment of a penalty and for the collection of debt are essentially monetary, that is, homogeneous, and when the deadline for execution comes, they can be terminated by offset according to the rules of Article 410 of the Civil Code.

Under these circumstances, the contested judicial acts are subject to cancellation in accordance with clause 1 of part 1 of Article 304 of the Arbitration Procedure Code of the Russian Federation as violating the uniformity in the interpretation and application of the rules of law by arbitration courts.

The case is to be sent for a new trial to the Arbitration Court of the Krasnoyarsk Territory to assess the parties' arguments regarding the amount of the penalty withheld by the customer.

Judicial acts of arbitration courts that have entered into legal force in cases with similar factual circumstances, adopted on the basis of a rule of law in an interpretation that diverges from the interpretation contained in this resolution, may be revised on the basis of paragraph 5 of part 3 of Article 311 of the Arbitration Procedural Code of the Russian Federation, if for there are no other obstacles.

Taking into account the above and guided by Article 303, paragraph 2 of part 1 of Article 305, Article 306 of the Arbitration Procedural Code of the Russian Federation, the Presidium of the Supreme Arbitration Court of the Russian Federation

decided:

the decision of the Arbitration Court of the Krasnoyarsk Territory dated 08/11/2011 in case No. A33-7136/2011, the Resolution of the Third Arbitration Court of Appeal dated 11/01/2011 and the Resolution of the Federal Arbitration Court of the East Siberian District dated 01/31/2012 on the same case are cancelled.

The case should be sent for a new trial to the Arbitration Court of the Krasnoyarsk Territory.

Presiding

A.A.IVANOV

ARBITRATION COURT OF THE NORTHWESTERN DISTRICT

RESOLUTION

Arbitration Court of the North-Western District consisting of presiding L.B. Muntyan, judges G.E. Burmatova, S.V. Sokolova, with participation from the limited liability company "Okhta Form Company" Yu.L. Solodkova. (power of attorney dated January 24, 2017), from the closed joint stock company "Farmakor" Demin A.A. (power of attorney dated 07/01/2016), having considered on 03/21/2017 in open court the cassation appeal of the limited liability company "Okhta Form Campaign" against the decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region dated 07/14/2016 (judge M.V. Kuznetsov) and the decision of the Thirteenth Arbitration Court of Appeal dated November 30, 2016 (judges Toivonen I.Yu., Kopylova L.S., Rychagova O.A.), in case No. A56-23058/2016,

installed:

Limited Liability Company "Okhta Form Company", location: 196128, St. Petersburg, Kuznetsovskaya street, building 26, letter A, room 2A, OGRN 1137847474357, INN 7810402871 (hereinafter referred to as Okhta Form Company LLC, plaintiff) appealed to the Arbitration Court of the city of St. Petersburg and the Leningrad Region with a claim against the closed joint-stock company "Pharmakor", location: 197375, St. Petersburg, Repishcheva street, building 14, letter A, INN 77811062339, OGRN 1037825007450 (hereinafter - CJSC "Pharmakor" ", defendant) for the recovery of 2,819,385 rubles. 50 kopecks debts under the contract dated September 20, 2014 N 1/12-2014.

By the decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region dated July 14, 2016, upheld by the decision of the Thirteenth Arbitration Court of Appeal dated November 30, 2016, the claim was rejected.

In the cassation appeal, Okhta Form Company LLC requests that the decision dated July 14, 2016 and the resolution dated November 30, 2016 be canceled and the case be sent for a new trial to the court of first instance. According to the complainant, the courts incorrectly determined the circumstances relevant to the case and incorrectly applied the rules of substantive law. The plaintiff believes that the defendant had no grounds for accruing a penalty, since at the time the work expired, 90% of the total volume of work had been completed and delivered to the customer, and therefore, the penalty was accrued on formal grounds and believes that the withheld penalty is disproportionate.

In its response to the complaint, Pharmakor CJSC asks that the appealed judicial acts be left unchanged, considering them legal and justified.

At the court hearing, the plaintiff presented objections to the review of JSC Pharmakor.

Representatives of the parties supported their legal positions.

The legality of the appealed judicial acts was verified by cassation procedure.

As follows from the case materials and established by the courts, Okhta Form Company LLC (plaintiff, contractor) and Pharmakor CJSC (customer, defendant) entered into a contract agreement dated October 20, 2014 N 1/12-2014 (hereinafter referred to as the agreement), in in accordance with the terms of which the plaintiff, the executor under the contract, undertook, at his own risk, to carry out work with his own or external forces, the cost of which the customer (defendant) undertook to pay under the terms of the contract.

The start of work within two days from the moment of payment and receipt of materials at the site, completion of work - no later than April 20, 2015 (clause 2 of the contract). The cost of the work and materials to be performed is determined by the estimate, which is an integral part of the contract, and amounts to RUB 11,879,980. (clause 3.1 of the agreement). Clause 3.2 of the agreement provides for an advance payment in the amount of RUB 3,081,752. to begin the work, which is transferred by the customer to the contractor’s bank account within 5 banking days from the date of signing the contract. Further payment for work performed is made by the customer according to the payment schedule, which is an integral part of the contract, on the basis of acts of acceptance of work performed and an invoice issued by the contractor.

According to clause 6.1 of the contract, acceptance of the result of the work performed is formalized by the parties signing an act and a certificate of the established form on the delivery and acceptance of the result of the work performed (forms KS-2 and KS-3). Acceptance of individual volumes (stages) of work is carried out only if this is provided for in the contract.

By additional agreement dated 02/26/2015 No. 1 to the contract, the parties agreed on the contractor to perform additional work on site for a total amount of 3,193,282 rubles, with a deadline for their completion until 04/30/2015. The works provided for in the contract were completed by the plaintiff, their results were transferred to the defendant on the basis of certificates of completion (KS-2) and certificates of the cost of work performed and expenses (KS-3).

CJSC Pharmakor transferred funds in the amount of 21,442,321 rubles to the plaintiff’s bank account as payment for the work performed.

Assuming that the customer has a debt under the contract in the amount of RUB 2,819,385. 50 kopecks Okhta Form Company LLC sent a claim to him.

Since the claim was left unsatisfied, the contractor filed this claim with the arbitration court.

The court of first instance, having established the absence of evidence of the completion of work in the amount of 338,747.50 rubles. according to certificate KS-3 dated August 27, 2015, in the amount of 158,000 rubles. according to the invoice dated 09/03/2015, in the amount of RUB 545,848. according to the act dated 08/14/2015 and taking into account the notice of Pharmakor CJSC dated 04/15/2016 N 74 on the offset of the penalty in the amount of 1,881,498.07 rubles. on the basis of clause 8.5 of the agreement, refused to satisfy the claims.

The appellate court agreed with the findings of the trial court.

The cassation court, having studied the case materials and the arguments of the complaint, checking the correctness of the application of the rules of substantive and procedural law by the courts of the first and appellate instances, finds no grounds for satisfying the cassation complaint.

According to Article 420 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), a contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations.

Paragraph 1 of Article 421 of the Civil Code of the Russian Federation establishes that citizens and legal entities are free to enter into an agreement.

The terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (Article 422 of the Civil Code of the Russian Federation).

In accordance with Article 431 of the Civil Code of the Russian Federation, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of a contract term, if it is unclear, is established by comparison with other terms and the meaning of the contract as a whole.

In accordance with Articles 309 and 310 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, other legal acts, and in the absence of such conditions and requirements - in accordance with customs or other usually imposed requirements. Unilateral refusal to fulfill an obligation and unilateral change of its terms are not permitted, except in cases provided for by the Code, other laws or other legal acts.

Paragraph 1 of Article 746 of the Civil Code of the Russian Federation provides that payment for work performed by the contractor is made by the customer in the amount provided for in the estimate, within the time frame and in the manner established by law or the construction contract. In the absence of appropriate instructions in the law or contract, payment for work is made in accordance with Article 711 of this Code.

By virtue of paragraph 1 of Article 711 of the Civil Code of the Russian Federation, if the contract does not provide for advance payment for the work performed or its individual stages, the customer is obliged to pay the contractor the agreed price after the final delivery of the work results, provided that the work is completed properly and within the agreed period, or with the consent of customer ahead of schedule.

The cassation court believes that the courts of the first and appellate instances correctly qualified the customer’s actions to withhold the amount of the penalty in payment for work performed during final settlements as an offset of mutual claims.

By virtue of paragraph 2 of Article 154, Article 410 of the Civil Code of the Russian Federation, offset as a method of terminating an obligation is a unilateral transaction, the completion of which requires certain conditions: the demands must be counter-claims, homogeneous, with deadlines for fulfillment. For offset, a statement from one party is sufficient.

From the case materials it follows that the agreement concluded between the parties provides for the customer’s right to withhold the amount of sanctions accrued to the contractor for violating the deadlines for completing the work when making final payments.

Thus, the parties to the bilateral transaction agreed on the basis for terminating the customer’s obligation to pay for work performed, which does not contradict the requirements of civil law.

Based on the provisions of Article 421 of the Civil Code, the parties are free to enter into an agreement and can determine its terms at their own discretion, except in cases where the content of the relevant condition is prescribed by law or other legal acts.

Since the parties, by mutual agreement, chose such a method of terminating the customer’s obligation to pay for the work performed as withholding the amount of the penalty in case of delay in their completion at the final settlements under the contract, the contractor’s demands for payment of the debt for the work performed as a result of this withholding cannot be satisfied.

Carrying out work on façade cladding in the amount of RUB 1,092,090. with a missed deadline is confirmed by the case materials and is not disputed by the plaintiff.

On the basis of Part 1 of Article 64 and Article 71 of the Arbitration Procedure Code of the Russian Federation, the arbitration court establishes the presence or absence of circumstances justifying the demands and objections of the persons participating in the case, as well as other circumstances that are important for the correct consideration of the case, on the basis of the evidence presented, in the assessment of which it is guided by the rules of Articles 67 and 68 of the Arbitration Procedure Code of the Russian Federation on the relevance and admissibility of evidence.

Having assessed the documents presented in the case materials, the courts came to the conclusion that the act of reconciliation of mutual settlements as of March 18, 2016, submitted by Okhta Form Company LLC to the case materials, cannot indicate the defendant’s recognition of the existence of a debt in the declared amount. Other evidence indicating the existence of the customer’s debt under the contract was examined by the courts and received a proper legal assessment.

The conclusions of the courts of first and appellate instances correspond to the factual circumstances of the case and the evidence available in the case. The courts correctly applied the rules of substantive and procedural law. The cassation court finds no grounds for a different assessment of the evidence presented.

The cassation appeal cannot be satisfied.

Guided by Articles 286, 287, 289 of the Arbitration Procedural Code of the Russian Federation, the Arbitration Court of the North-Western District

decided:

the decision of the Arbitration Court of the city of St. Petersburg and the Leningrad Region dated July 14, 2016 and the decision of the Thirteenth Arbitration Court of Appeal dated November 30, 2016 in case No. A56-23058/2016 are left unchanged, and the cassation appeal of the limited liability company "Okhta Form Company" is left without satisfaction.

Presiding

L.B.MUNTYAN

G.E.BURMATOVA

Is it possible to unilaterally offset penalties for late delivery of Goods against the existing debt under the same agreement, but for previously delivered goods? The contract was concluded on May 19, 2015. Specification for goods not delivered on time - 08/04/2015. The possibility of offset is not specified in the agreement.

Answer

September 28

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 10, 2012 N 2241/12 in case N A33-7136/2011 “Counter claims for the payment of a penalty and for the collection of debt upon the maturity of the obligation may be terminated by offset according to the Rules of Article 410 of the Civil Code of the Russian Federation, if so provided in the contract"

The essence of the dispute

Based on the decision of the auction commission, a state contract (hereinafter referred to as the contract) was concluded between the regional state budgetary healthcare institution "Regional Clinical Hospital" (hereinafter referred to as the Hospital, the customer) and Stroytekhniks LLC (hereinafter referred to as the contractor), under the terms of which the contractor was obliged to fulfill the customer's instructions carry out, within two months from the date of conclusion of the contract, major repairs of the roof and storm drainage of the hospital catering building in accordance with the auction documentation, and the customer will accept and pay for the results of the work.

The cost of work under the contract amounted to 5,100,154 rubles. 20 kopecks and was subject to payment subject to the completion of the work properly and within the period agreed upon by the parties (clause 2.2 of the contract).

According to clauses 6.2 and 6.3 of the contract, in the event that the contractor violates the deadline for the start or completion of work, the customer has the right to deduct from the contract price in the form of a penalty an amount equivalent to 1 percent of the contract price for each day of delay until the start or completion of work. If the contractor fails to complete the entire range of work stipulated by the contract within the established time frame, the amount of the penalty is 1 percent of the cost of the work actually performed.

The customer accepted work for a total amount of 5,100,154 rubles. 20 kopecks, which is confirmed by acceptance certificates and certificates of the cost of work performed in forms KS-2 and KS-3 dated 07/28/2010, 09/29/2010 and 11/10/2010. The work performed was partially paid for: by payment order dated 09/01/2010 N 839 - RUB 1,272,968. 66 kopecks, payment order dated November 30, 2010 N 452 - 1,512,650 rubles. 14 kopecks

However, the payment is RUB 2,314,535. 40 kopecks the customer refused the debt. As the basis for the refusal, the Hospital cited the contractor’s violation of the terms of the contract, which resulted in a delay in the start of work (by 26 days) and its completion. Part of the work in the amount of RUB 3,361,444. 76 kopecks was accepted according to the act dated September 29, 2010 (the delay in completing the work was 55 days), and part - according to the act dated November 13, 2010. In addition, the customer repeatedly sent comments and complaints to the contractor regarding the timing and quality of work.

By notification dated November 22, 2010, the customer informed the contractor about the accrual of a penalty in the amount of RUB 2,314,535. 40 kopecks and its deduction from the cost of work performed.

Considering its right to be violated, Stroytekhniks LLC filed a claim with the arbitration court to recover 2,314,535 rubles. 40 kopecks debt under a government contract.

When considering this case, the question arose before the courts: can the customer in the situation under consideration unilaterally reduce the cost of the work to be paid by offsetting the counterclaim for payment of a penalty for late completion?

The problem of offsetting penalties and principal debt in judicial practice

Article 410 of the Civil Code of the Russian Federation provides that an obligation is terminated in whole or in part by offsetting a counterclaim of a similar nature, the due date of which has come or has not been specified or is determined by the moment of demand. For offset, a statement from one party is sufficient.

From this norm, the following characteristics of offset can be derived: reciprocity, uniformity and feasibility of requirements.

However, in judicial practice, another sign of offset is revealed - the indisputability (certainty) of claims. This feature is also known in international practice, and can be summarized as follows: an obligation is definite when it “is in itself indisputable, for example, when it is based on a valid and executed contract or on a final court decision or arbitration award that cannot be revised" (cited from the publication: Principles of International Commercial Agreements UNIDROIT 2004 / translated from English by A. S. Komarov. - M.: Statute, 2006. P. 287).

Courts often characterize this sign of offset (i.e., the indisputability of the claims presented for offset) as follows: at the time of the application for offset, the specified requirements should not be disputed (see, for example, the Resolution of the Federal Antimonopoly Service of the Volga District dated September 10, 2007 in case No. A55-19564 /2006-36, FAS of the North-Western District dated 08/05/2011 in case N A56-54354/2010, dated 04/04/2011 in case N A56-25686/2010, FAS of the Central District dated 02/08/2010 N F10-5964/09 case No. A14-3754/2009/112/11, Seventh Arbitration Court of Appeal dated June 28, 2012 in case No. A27-3695/2012).

This sign of offset is not named in the Civil Code of the Russian Federation. In this regard, in judicial practice the question arises: is it possible to offset the penalty against the payment of the principal debt, if we take into account that these claims are generally homogeneous, but the amount of the penalty is not always indisputable, and the sign of the indisputability (certainty) of the claims is directly in the Civil Code RF is not provided?

Until now, in practice, in order to offset a penalty in payment of the principal debt, as a rule, it has become necessary to prove the presence of the following signs of offset: certainty (indisputability) and homogeneity of counterclaims.

A. Sign of certainty (indisputability) of requirements

The difficulty of proving this characteristic is due to the unresolved question of whether a penalty can be qualified as an indisputable (definite) requirement. According to Art. 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of violation of the obligation, then the court has the right to reduce it. Based on this norm, we can conclude that the amount of the penalty is not certain and, therefore, it cannot be offset.

Judicial practice on this issue is ambiguous, but by the time the considered Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation was published, the following position prevailed: offset of the penalty against the principal debt is impossible, despite the homogeneity of these requirements, since without a court decision or agreement of the parties, the amount of the penalty is not certain and indisputable. The courts also point out that the recognition of a penalty as an indisputable obligation is hampered by the legal nature of the penalty as a way of ensuring the fulfillment of an obligation. This is confirmed by numerous judicial practices, which can be found at the link<*>.

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<*>Resolutions of the FAS of the Volga-Vyatka District dated 05/11/2011 in case No. A43-9007/2010, FAS of the East Siberian District dated 08/26/2011 in case No. A33-18104/2010, dated 12/14/2010 in case No. A19-5570/10, FAS of the West Siberian District dated 05/18/2011 in case No. A45-12863/2010, FAS of the Far Eastern District dated 05/10/2011 N F03-1735/2011 in case N A51-8241/2010, FAS Moscow District dated 02/17/2011 N KA- A40/164-11-P in case N A40-88655/09-12-653, FAS Volga District dated 04/17/2012 in case N A65-16703/2011, FAS North-Western District dated 08/05/2011 in case N A56- 54354/2010, dated 09.24.2010 in case N A56-21044/2009, FAS of the Ural District dated 06.11.2009 N F09-7855/09-C2 in case N A60-692/2009-C3, FAS Central District dated 04/09/2012 in case No. A08-5550/2010, dated June 24, 2011 in case No. A08-5550/2010-12.

The amount of the penalty, according to the courts, is confirmed in a court decision or by agreement of the parties. This position has received support in the legal literature (see, for example: Bevzenko R. Statement on the offset of counterclaims. How practice issues are resolved // Company Lawyer. 2012. N 6. pp. 25 - 26).

The above approach can also be justified by the explanations of the Presidium of the Supreme Arbitration Court of the Russian Federation, contained in paragraph 1 of Information Letter No. 17 dated July 14, 1997 “Review of the practice of application by arbitration courts of Article 333 of the Civil Code of the Russian Federation,” according to which, if there are grounds for applying Art. 333 of the Civil Code of the Russian Federation, the arbitration court reduces the amount of the penalty regardless of whether such a petition was filed by the defendant. These clarifications were relevant until February 24, 2011, when the Presidium and then the Plenum of the Supreme Arbitration Court of the Russian Federation changed their position on the problem of reducing the clearly disproportionate penalty by the court, including on the initiative of the court itself, as will be indicated below.

A similar position on the issue of offsetting a penalty against the payment of the principal debt is also found in the practice of courts of general jurisdiction (see, for example, the Cassation ruling of the Court of the Jewish Autonomous Region dated January 21, 2011 in case No. 33-21/2011).

In the practice of arbitration courts, there was, however, a different position that allowed the offset of claims for the collection of a penalty against the payment of the principal debt (Determination of the Supreme Arbitration Court of the Russian Federation dated September 30, 2008 N 12212/08 in case N A55-11547/2007, Resolution of the FAS Volga District dated 08.02. 2011 in case No. A65-28759/2009).

It should be noted that currently the position of the Supreme Arbitration Court of the Russian Federation, both at the level of the Presidium and at the level of the Plenum, regarding the right of the court to reduce the amount of the penalty has changed (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 13, 2011 N 11680/10 in case N A41-13284/ 09, Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 22, 2011 No. 81 “On some issues of application of Article 333 of the Civil Code of the Russian Federation” (hereinafter referred to as Resolution No. 81). In particular, paragraph 1 of Resolution No. 81 provides that the penalty can be reduced by the court. only if there is a corresponding application from the defendant.

Also, the Plenum of the Supreme Arbitration Court of the Russian Federation established a clear guideline for determining the excessiveness of the penalty. Clause 2 of Resolution No. 81 states that, as a general rule, the amount of the penalty is not excessive if it is lower than twice the discount rate (refinancing rate) of the Bank of Russia established at the time of the violation.

Thus, the amount of the penalty has become more stable and certain, since the likelihood of the court reducing the amount of the penalty has significantly decreased.

In addition, one cannot fail to note the assessment expressed in 2012 by the Presidium of the Supreme Arbitration Court of the Russian Federation of the significance of the sign of indisputability of a claim for termination of obligations by offset: the indisputability of the claims to be counted and the absence of objections from the parties regarding both the presence and the amount of claims are, as a general rule, not defined by the Civil Code of the Russian Federation as conditions offset (Resolution dated 02/07/2012 N 12990/11 in case N A40-16725/2010-41-134, A40-29780/2010-49-263, see also Resolutions of the Federal Antimonopoly Service of the Far Eastern District dated 07/27/2012 N F03-2949/ 2012 in case No. A24-1323/2012, Eighth Arbitration Court of Appeal dated August 29, 2012 in case No. A75-639/2012).

The above-mentioned judicial practice notes that the existence of a dispute regarding one of the counterclaims does not prevent the filing of an application for offset, provided that the obligation to terminate which the offset claim is aimed at does not initiate court proceedings at the time of the application for offset. After filing a claim against a person who has the right to declare a set-off, this right can only be exercised by filing a counterclaim, which is accepted by the court on the basis of clause 1, part 3 of Art. 132 Arbitration Procedure Code of the Russian Federation.

It is advisable to pay attention to the fact that the above Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02/07/2012 N 12990/11 in case No. A40-16725/2010-41-134 was posted on the official website of the Supreme Arbitration Court of the Russian Federation on May 10, 2012, however, the explanations of the highest court instances did not lead to a complete overcoming of the previously dominant approach in judicial practice. Thus, even after the publication of this Resolution, the position remains widespread that the indisputability of counterclaims is a mandatory sign of offset of the penalty against the payment of the principal debt. Today, this practice is represented mainly by acts of courts of appeal (Resolutions of the Third Arbitration Court of Appeal dated June 25, 2012 in case No. A33-17246/2011, Fourteenth Arbitration Court of Appeal dated July 12, 2012 in case No. A05-15347/2011, Ninth Arbitration Court of Appeal court dated July 23, 2012 No. 09AP-18636/2012-GK, 09AP-19671/2012-GK in case No. A40-25508/12-125-112, Tenth Arbitration Court of Appeal dated May 18, 2012 in case No. A41-39504/11 ).

B. Sign of homogeneity of requirements

See the legal positions of the Presidium of the Supreme Arbitration Court of the Russian Federation on this issue.

Paragraph 7 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 N 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-similar claims” explains: Art. 410 of the Civil Code of the Russian Federation does not require that the requirement for offset arise from the same obligation or from obligations of the same type.

Based on this clarification, the courts come to the conclusion that the concept of homogeneity does not exclude the possibility of presenting for offset claims arising from different obligations. Thus, from the point of view of such a sign of offset as homogeneity of claims, the different legal nature of the penalty and the principal debt is not an obstacle to offset (Resolution of the FAS Volga-Vyatka District dated April 13, 2012 in case No. A11-3980/2011, FAS Volga District dated 04/17/2012 in case No. A65-16703/2011, FAS of the Ural District dated 11/06/2009 N F09-7855/09-C2 in case No. A60-692/2009-C3). Please note that in the examples given, the courts, however, refused to set off due to the undisputed nature of the claim for a penalty.

However, in practice there was also an opposite position, which was that the legal nature of the penalty and the principal debt are different, and therefore, offsetting the amounts paid on the main obligation to pay off the debt on an additional obligation (penalty) violates the rule on the homogeneity of the obligations subject to offset (Resolution FAS Moscow District dated November 14, 2011 in case No. A40-101178/10-19-882, a similar position is contained in the Resolutions of the FAS North-Western District dated June 29, 2012 in case No. A56-14752/2011, the Fourteenth Arbitration Court of Appeal dated July 12. 2012 in case No. A05-15347/2011). Examples of a similar position also occur in the practice of courts of general jurisdiction in the Moscow region (see, for example, the Determination of the Moscow Regional Court dated November 16, 2010 in case No. 33-21870).

This problem was resolved by the Presidium of the Supreme Arbitration Court of the Russian Federation, as reflected in Resolution No. 1394/12 of June 19, 2012 in case No. A53-26030/2010. This Resolution contains the following legal position: counterclaims for the payment of a penalty and for the collection of debt are essentially monetary, that is, homogeneous, and when the deadline for execution comes, they can be terminated by offset according to the rules of Art. 410 of the Civil Code of the Russian Federation.

This legal position was accepted by judicial practice (see, for example, Resolution of the Federal Antimonopoly Service of the North Caucasus District dated September 6, 2012 in case No. A32-1405/2011).

Conclusions of the lower courts

The court of first instance satisfied the stated requirements, which was supported by the court of appeal.

The courts indicated that the basis for the customer's obligation to pay for the work provided for in the contract is the delivery of the work to the customer by signing acceptance certificates for the work performed (in the KS-2 form) with the issuance of a certificate of the cost of the work performed and expenses (in the KS-3 form). The signing by the Hospital of the specified acts and certificates without comments on the volume, quality and cost of work does not relieve it of the obligation to pay for them in full.

The fact that the customer has claims against the contractor regarding the timing of the work cannot be the basis for a unilateral reduction in the cost of the work to be paid by offsetting the counterclaim for payment of a penalty for late completion of the work. This requirement, according to the courts of first and appellate instances, can only be implemented by filing a claim for a penalty based on arguments about the contractor’s violation of the terms of the contract.

The cassation court supported the conclusions of the lower authorities, additionally pointing out that offset of claims is possible only if they are indisputable in nature, and a penalty by its nature is a way of ensuring the fulfillment of obligations, its amount can be disputed both on the basis of its occurrence and in size, and if there is dispute - reduced by the court on the basis of Art. 333 Civil Code of the Russian Federation.

However, the Supreme Arbitration Court of the Russian Federation, in its Ruling dated April 28, 2012 No. VAS-2241/12 in case No. A33-7136/2011, came to the conclusion that it is necessary to review judicial acts of lower authorities in the manner of supervision, since in these acts the courts made an incorrect interpretation and application of the rules rights.

The legal argumentation contained in this Definition was generally accepted by the Presidium of the Supreme Arbitration Court of the Russian Federation, with the exception of the thesis about the heterogeneity of requirements for payment of the penalty and the principal debt. This thesis is reflected in the following quote from this Definition: “the parties, having agreed in the state contract on the condition of the customer’s right to reduce the amount payable for work performed by the amount of the counterclaim in the amount of the accrued penalty, thereby provided for the condition on the possibility of offsetting heterogeneous monetary claims. This contractual the condition determined at the discretion of the parties does not violate any mandatory prohibitions and regulations."

It should be noted that the argumentation contained in this Determination was accepted by judicial practice even before the publication of the considered Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation, as well as before the publication of the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 19, 2012 N 1394/12 in case N A53-26030/ 2010 (Resolutions of the Eighth Arbitration Court of Appeal dated 06.21.2012 in case No. A70-11074/2011, dated 06.15.2012 in case No. A70-11072/2011, Nineteenth Arbitration Court of Appeal dated 06.08.2012 in case No. A08-5201/2011) .

Please note that the Determination of the Supreme Arbitration Court of the Russian Federation is a procedural act and does not contain the legal position of the Supreme Arbitration Court of the Russian Federation, since it does not resolve the dispute on the merits.

Position of the Presidium of the Supreme Arbitration Court of the Russian Federation

The Presidium of the Supreme Arbitration Court of the Russian Federation canceled the judicial acts of lower authorities and sent the case for a new consideration, formulating the following legal positions.

1. The condition of the state contract on the termination of counter monetary claims does not contradict the provisions of civil legislation, in particular Art. 407 of the Civil Code of the Russian Federation.

2. The possibility of a court reducing the penalty does not prevent the customer from exercising the right provided for in the contract to terminate by offsetting the payment obligation in the relevant part.

3. Counterclaims for the payment of a penalty and for the collection of debt are essentially monetary, that is, homogeneous, and when the deadline for execution comes, they can be terminated by offset according to the rules of Art. 410 of the Civil Code of the Russian Federation.

Regarding the last legal position, it should be recalled that judicial practice allows for the existence of a so-called commodity penalty. Thus, according to paragraph 7 of Resolution No. 81, the establishment in an agreement of a condition providing for the transfer not of money, but of other property in favor of the creditor, in the event of a violation by the debtor of an obligation, does not contradict the law.

It seems that the legal position on the admissibility of offsetting the penalty against the payment of the principal debt may not be applicable if the penalty is a commodity one. However, the Resolution in question does not contain any special reservations in this regard.

4. When considering a dispute regarding a contractor’s claim for recovery of the unpaid cost of work, the court must check the existence of grounds for applying liability for late completion of work in the form of a penalty, as well as grounds for its reduction in accordance with Art. 333 of the Civil Code of the Russian Federation in the presence of a corresponding statement from the contractor about the disproportionality of the accrued penalty.

It should be noted that the Presidium of the Supreme Arbitration Court of the Russian Federation did not directly qualify the obligation to pay a penalty as definite (indisputable). However, the conclusion of the Presidium of the Supreme Arbitration Court of the Russian Federation that “the parties, by mutual agreement, chose this method of terminating the customer’s obligation to pay for work performed, such as withholding the amount of the penalty in case of delay in their completion during final settlements under the contract, the contractor’s demands for payment of the cost of work performed in the relevant part was not subject to satisfaction,” allows us to conclude that the amount of the penalty was determined.

However, one cannot fail to note the previously formulated and cited above legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation, according to which the indisputability of counterclaims and the absence of objections from the parties regarding both the existence and amount of claims are not defined by the Civil Code of the Russian Federation as conditions for offset (Resolution dated 02/07/2012 N 12990 /11 in case No. A40-16725/2010-41-134).

In general, the Presidium of the Supreme Arbitration Court of the Russian Federation supported the conclusions set out in Resolution No. 1394/12 of June 19, 2012 in case No. A53-26030/2010.

The Presidium of the Supreme Arbitration Court of the Russian Federation indicated that judicial acts of arbitration courts that have entered into legal force in cases with similar factual circumstances, adopted on the basis of a rule of law in an interpretation that diverges from the interpretation contained in the Resolution under consideration, can be revised on the basis of clause 5, part 3 Art. 311 of the Arbitration Procedure Code of the Russian Federation, if there are no other obstacles to this.

It should be noted that by virtue of clause 11 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 30, 2011 N 52 “On the application of the provisions of the Arbitration Procedural Code of the Russian Federation when revising judicial acts based on new or newly discovered circumstances,” this indicates that this legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation has been given a reverse strength.

In this regard, the considered Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation is the basis for reviewing judicial acts based on new circumstances.

The review was prepared by specialists of the Consultant Plus company and provided by the Consultant Plus Sverdlovsk Region company - the information center of the Consultant Plus Network in Yekaterinburg and the Sverdlovsk region

Crediting the penalty against payment for work performed.

The circumstances of the offset of the penalty.

An agreement for design, supply, installation and commissioning dated __ No. was concluded between the Customer and the Contractor. According to the terms of the Agreement, the organization undertook to design, supply the goods and carry out installation and commissioning work within the period agreed upon in the Agreement.

In accordance with clause 2.1. Agreement, the production period for products is calculated from the moment of receipt of an advance payment in the amount of 50% of the amount of this Agreement to the Contractor’s bank account and is 120 calendar days. Equipment shipment period for its delivery according to the details in accordance with clause 2.8. of this agreement is 10 (ten) working days from the date of its production.

201_ The defendant made an advance payment in the amount of 15,943,915.15 rubles, which is 50% of the contract amount, therefore, the goods had to be manufactured no later than _________. However, the goods were shipped on _________, in violation of the deadlines, which is confirmed by Consignment Note No. 10 dated _________.

Clause 7.2 of the Agreement provides for a penalty in the form of a fine in the event of failure by the Contractor to comply with the delivery time for goods in the amount of 0.1% of the total cost of the goods for each day of delay in delivery, but not more than 10% of the total cost of the goods. The delay in delivery of goods was 177 calendar days.

The amount of the penalty (penalty) is: XXX rubles, but according to the terms of the contract, the amount of the penalty (penalty) should not exceed 10% of the total cost of the goods, thus, the amount of the penalty (penalty) cannot be more than 2,574,753.1 rubles.

D. by letter with outgoing number No. a credit was made in the amount of ________ rubles. counter homogeneous claims. The offset was carried out from the moment of receipt of the letter about the offset of similar counterclaims.

The court of first instance and the appellate instance in the first circle come to the conclusion that it is impossible to withhold a penalty unilaterally, since the offset of a contractual penalty against payment for work performed, in the opinion of the court, contradicts the requirements of Article 410 of the Civil Code, which presupposes the possibility of terminating an obligation by offsetting only counter-similar claims.

Having disagreed with the decision of the court of the first two instances, a cassation appeal was filed on the following grounds:

Our Arguments regarding the test

Article 411 of the Civil Code of the Russian Federation. Cases of inadmissibility of offset:

The following claims are not allowed:

if, at the request of the other party, the claim is subject to a limitation period and this period has expired;

for compensation for harm caused to life or health;

on the collection of alimony;

about lifelong maintenance;

in other cases provided for by law or agreement.

The agreement does not provide that offset cannot be produced, the law also does not imply otherwise. Moreover, numerous practice suggests that offset can be made for the amount of the penalty.

The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 7 of the information letter dated December 29, 2001 No. 65 “Review of the practice of resolving disputes related to the termination of obligations by offsetting counter-similar claims” explained:

“Article 410 of the Civil Code of the Russian Federation does not require that the requirement for offset arise from the same obligation or from obligations of the same type.

The contractor filed a claim against the customer to recover the cost of the work performed.

The defendant did not admit the claim, citing the termination of his obligation to pay by offsetting a similar counterclaim.

The court of first instance found that the contract work was carried out by the contractor using loan funds, since the customer did not pay for the work performed on time.

In satisfying the claim, the court of first instance referred to the fact that the requirement for payment for work and the requirement for the return of interest paid for using a loan under a guarantee agreement are not homogeneous, therefore, Article 410 of the Civil Code of the Russian Federation cannot be applied to these relations.

The appellate court overturned the decision. At the same time, in the resolution the following was justifiably stated.

The customer, being the contractor's guarantor for the loan obligation, satisfied the bank's demand to pay interest for the use of funds. Therefore, he received the rights of a creditor in terms of paying interest for using the loan in an amount equal to the amount paid to the bank. The customer's requirement is civil - a legal monetary obligation that is similar to the contractor’s monetary claim for payment for work performed.”

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 10, 2012 N 2241/12 in case N A33-7136/2011

Counterclaims for payment of penalties and collection of debt are monetary, i.e. homogeneous, and when the deadline for execution comes, they can be terminated by offset according to the rules of Art. 410 of the Civil Code of the Russian Federation.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 21, 2012 N 14321/11 in case N A79-7483/2009

As follows from Art. 410 of the Civil Code of the Russian Federation, the obligation is terminated by offsetting a counterclaim of the same type. In this case, counterclaims arise from obligations in which the same persons participate, who are both debtors and creditors in relation to each other.

“The case must be sent for a new trial to the court of first instance.

When reconsidering a case, the court of first instance must examine the issue of the presence of counter monetary obligations of the parties at the time of concluding the offset agreement and apply the rules of substantive law in accordance with their interpretation contained in this resolution."

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 19, 2012 N 1394/12 in case N A53-26030/2010

Under the terms of the contract, the contractor undertook to complete the design work no later than 05/04/2008, and the customer - to ensure acceptance and payment for the work performed.

Clauses 7.1 and 7.2 of the contract establish the contractor’s liability for failure to comply with deadlines in the form of penalties in the amount of 0.1 percent of the contract price for each calendar day of delay.

When making final payments to the contractor for work performed, the customer withheld 1,314,373 rubles 80 kopecks - penalties for 94 days of delay in fulfilling the obligation.

The fact that the company received an application for offset of similar counterclaims is not disputed.

Having assessed the evidence presented by the parties from the standpoint of Article 71 of the Arbitration Procedural Code of the Russian Federation, guided by Articles 330, 408, 410, 421, 422 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code, the Code), the court of first instance took into account the offset of counterclaims made by the customer and concluded that there was no outstanding debt of the defendant to the plaintiff.

The courts of appeal and cassation, overturning the decision of the court of first instance, referred to the illegality of the offset of claims made by the defendant for the collection of debt for work performed and penalties of different legal nature. The courts indicated that the requirement to pay a penalty is not indisputable, since its size can be reduced by the courts according to the rules of Article 333 of the Civil Code, therefore, the customer’s obligation to pay the debt cannot be terminated by offsetting a heterogeneous claim for the collection of penalties for late completion of work.

The Presidium believes that the courts of three instances incorrectly qualified the customer’s actions to withhold the amount of the penalty in payment for work performed during final settlements as an offset of mutual claims.

Under these circumstances, the contested decision of the court of appeal and the decision of the court of cassation are subject to cancellation in accordance with paragraph 1 of part 1 of Article 304 of the Arbitration Procedural Code of the Russian Federation as violating the uniformity in the interpretation and application of the rules of law by arbitration courts.

The above judicial practice speaks for itself and leaves no doubt as to whether the penalty is a counterclaim of the same kind and whether it is subject to offset in our case. In connection with the offset, we believe that the debt in the amount of 2,214,647.60 has been repaid, therefore, the claims brought against the Defendant should be rejected.

The main argument of the court regarding the heterogeneity of the requirements is the argument that if the customer independently withholds the penalty, the contractor is deprived of the opportunity to protect his interests on the basis of Article 333 of the Code. Taking into account the fact that the penalty can be challenged both in law and in amount, and if a dispute arises, it can be reduced by the court, the requirement for its payment cannot be considered homogeneous with the requirement for payment for work.

We do not agree with this statement, since the court had the opportunity to check the offset made, both by law and by amount, and if doubts arose about the amount, apply Art. 333 of the Civil Code of the Russian Federation in this way adjust the amount of the offset made. This position is confirmed by the judicial practice below.

Resolution of the Arbitration Court of the Moscow District dated February 20, 2015 N F05-17251/2014 in case N A40-64548/14

Decision: The case was sent for a new trial, since the court did not establish the possibility of accruing a penalty, its amount, and did not assess the contract agreements, assignment of the right of claim, the defendant's claims to offset the penalty.

“The possibility of a court reducing the penalty does not prevent the customer from exercising the right provided for in the contract to terminate the obligation by setting off payment in the relevant part.”

Resolution of the Arbitration Court of the Moscow District dated December 8, 2014 N F05-12711/2014 in case N A41-20311/14

During a new consideration, the court must re-discuss the defendant’s application for set-off, based on the provisions of the current civil legislation and the explanations contained in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 N 65, as well as the arguments given by the defendant in support of the stated petition (including about that, about the test). At the same time, the cassation court considers it appropriate to point out that, based on the provisions of civil law, a necessary condition for the offset is the homogeneity of the counter and main claims. The homogeneity of requirements means their subject homogeneity, that is, monetary requirements. At the same time, the purpose of this method of terminating obligations, such as offset, is to achieve the economy of civil turnover, since offset allows us to avoid the occurrence of a situation where money or other things defined by generic characteristics transferred by one person to another person in fulfillment of an existing obligation between them would immediately be subject to return to the first person in fulfillment of another obligation between the same persons. The requirement of homogeneity relates only to the subject of the requirements, but not to the grounds for their occurrence, therefore Art. 410 of the Civil Code of the Russian Federation does not require that the requirement for offset arise from the same obligation or from obligations of one type, that is, for offset the homogeneity of the grounds for the occurrence of obligations is not required.

The court of first instance, by refusing to recognize the offset, not only came into conflict with the current legislation and established practice, but it also does not contribute to the procedural time savings of both the participants in the process and the judicial system as a whole. If the decision remains unchanged, the defendant has no choice but to file independent claims for the recovery of penalties. We believe that this issue could be resolved in the present case, and a separate trial in this regard is not required.

As a result, the cassation court accepted our arguments and overturned the decisions of the first and appellate instances and sent the case for a new trial.

“The case was sent for a new trial, since the court, in violation of the requirements of the law, selectively assessed the evidence available in the case, since the court did not give an assessment offset of debts.»

Moreover, the Respondent was not satisfied with the above resolution and a complaint was filed with the RF Armed Forces.

The Supreme Court of the Russian Federation once again checked the case materials and concluded that the penalty in the present case is relative:

“Counterclaims for payment of a penalty and for collection of debt are homogeneous and can be terminated by offset according to the rules of Art. 410 of the Civil Code of the Russian Federation.

Arguments that would indicate the presence in the appealed decision district court of significant violations of material and (or

Decision of the Butyrsky District Court of Moscow dated April 9, 2014
T.’s claims against Stolichny Zodchiy LLC, the Office of Rosreestr in Moscow for recognition of ownership, the obligation to transfer objects, the obligation to make an entry in the Unified State Register of Rights, the collection of penalties, fines, compensation for losses, moral damages, on the production of offset of counter homogeneous claims - partially satisfied.

Appeal ruling of the Moscow City Court dated August 20, 2014 in case No. 33-33030/14
The decision of the Butyrsky District Court of Moscow dated April 9, 2014 was overturned.
I decided to offset T.’s homogeneous counterclaims against Stolichny Zodchiy LLC in the form of an offset of the penalty and the recovered compensation for moral damage in the amount of... rub. against T.’s debt to Stolichny Zodchiy LLC resulting from an increase in the actual total area of ​​apartment N..., located at the address: g... in the amount of... rubles, determining final collection from Stolichny Zodchiy LLC in favor of T.... (…) rub…. cop.

Documents used:

The developer delayed the construction of the apartment, therefore, he owes me a penalty. Moreover, in accordance with the contract, I must pay the developer extra to increase the area of ​​the apartment. Can I offset the amount of the penalty?

In accordance with Art. 410 of the Civil Code of the Russian Federation, the obligation is terminated in whole or in part by offsetting a counterclaim of the same type, the due date of which has come or the due date of which is not specified or determined by the moment of demand. For offset, a statement from one party is sufficient.