The lawyer, partner of Tenzor Consulting Group Anton Makeychuk believes that the Supreme Court of the Russian Federation continues the tendency to protect the rights of the customer in cases of contractor bankruptcy, upholding the legality of balancing the mutual claims of the parties to the contract. “Earlier, at the level of the Supreme Court, a position was formulated several times that a reduction in the contract price due to improper fulfillment of the main obligation is not a set off within the meaning of Art. 410 of the Civil Code of the Russian Federation and similar balancing actions cannot be challenged in the bankruptcy case (for example, Decisions of the RF Armed Forces No. 304-ES17-14946 of January 29, 2018, No. 305-ES17-17564 of March 12, 2018). Thus, in the analyzed definition, the Court as a whole confirmed its legal position, ”he explained.
At the same time, the expert called the disputed position of the Armed Forces regarding the settlement of the penalty and the main debt, since in this case the “body” of the debt is counted as a penalty. “This position, of course, is reasonable and fair under normal business conditions, however, in a controversial situation, the contractor had signs of insolvency. The settlement of the principal debt and the penalty (which is non-voting in the register of claims) upsets the balance of interests in relation to the debtor and other creditors. Moreover, given the fact that in the controversial case the work was completely delivered, and therefore there was every reason for the full payment of the work, because the work performed for the customer was of consumer value, the lawyer believes. – At the same time, if instead of forfeit, the requirements regarding the “body” of the debt are balanced (for example, in terms of undeveloped advance, in terms of poor-quality work, etc.), then the balance of interests is not upset, since in this case it can really be said that the customer had no obligation to fully pay for the work performed (due to non-fulfillment in the proper form). ”
Anton Makeychuk is sure that in the dispute considered by the Supreme Court of the Russian Federation, the customer had to pay the full cost of the work performed, and he should have voiced the claim for the recovery of the penalty in the contractor insolvency case.