One of the most common transactions in market conditions is a purchase and sale operation, which is associated with the supply of a certain product or raw material. Its terms are regulated by an agreement between the supplier and the buyer.
Lack of money or inability to pay the supplier for any other reason does not exempt you from fulfilling the obligations specified in the document. Mutual claims often lead to the fact that the recipient does not want to pay for the product, and the supplier insists on receiving money. In this case, disputes are resolved in court. Cases regarding debt collection under a supply agreement are considered in an arbitration court (for legal entities and individual entrepreneurs) .
Which court should I go to?
The supply of goods is regulated by §3 of the Civil Code of the Russian Federation, in particular Article 506 of the Civil Code of the Russian Federation: under a supply contract, the supplier-seller engaged in business activities undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in business activities or for other purposes, not related to personal, family, home and other similar use, and the buyer undertakes to pay for them.
Typically, a statement of a controversial situation is examined by the arbitration institution at the place of registration or commercial activity of the defendant, but there may be exceptions. The plaintiff has the right to independently choose a court in the following cases:
- It is impossible to determine exactly where the defendant is located. The claim should be filed at the last known address of his residence or the location of the property;
- if there are several debtors and they are registered at different addresses, then the court is selected at the location of one of them;
- if the defendant is abroad, the claim may be accepted at the location of his property within the country;
- if the contract specifies the territory for its execution, then it is possible to go to court at the specified place;
- in the case of cooperation with a branch of the defendant’s company, located separately from the head office, the claim can be filed both at the location of the organization itself and its branch.
Evgeniy Baidalin
Arbitration lawyer. More than 10 years of experience
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Also, the parties, by mutual agreement, can choose the arbitration court to hear the case (contractual jurisdiction).
Citizen chooses court
The statement was made at the XIII Annual Scientific Readings dedicated to the memory of Professor S.N. Bratusya. The forum was held at the Institute of Legislation and Comparative Law under the Russian Government, the main government expert institution on legal issues.
Of course, the principle of contractual jurisdiction is mainly of interest to large businesses: companies with large contracts also negotiate the place of the judicial meeting with their partners, potential opponents (in the procedural sense). But the ordinary citizen often has to deal with the rules of contractual jurisdiction when a bank, car dealership, insurance company, etc. they stipulate conditions in the contracts, they say, in case of dissatisfaction with each other we will only go to court there.
Theoretically, the contract is voluntary. However, in fact the condition is imposed on the person. Sign if you want, or if you don’t want, goodbye, there will be no loan or purchase.
“Abandonment of the institution of contractual jurisdiction will not lead to infringement of the procedural rights of persons in need of additional legal protection,” emphasized Viktor Momotov. — For such persons, the procedural legislation provides for the institution of jurisdiction at the choice of the plaintiff, which allows the citizen, as a weak participant in legal relations, to choose the most convenient court in terms of accessibility to justice. In particular, in disputes about the protection of consumer rights, pensions, housing, labor and other most significant rights, the plaintiff has the right to file a claim in court at the place of his residence.”
In other words, the average person will still have a choice of where to file a lawsuit: where he lives, or where the organization that offended him is located.
The consumer will have the right to choose the place: to sue where he lives, or closer to the defendant
“We know that our proposal did not find understanding in the legislative body, but nevertheless we consider it rational and constructive,” said Viktor Momotov. — Considering that this initiative is dictated by life itself, we are convinced that sooner or later it will be recognized as necessary and inevitable. There are often situations when the court chosen by the parties is not related either to the location of the parties or to the nature of the disputed legal relationship. A single legal space has been formed in the Russian Federation, and courts, in accordance with the principle of legal certainty, uniformly interpret and apply the law. Under such circumstances, transferring a case from one court to another does not have any rational basis, since it does not affect the outcome of the case. In this regard, the time has come to abandon the institution of contractual jurisdiction, making an exception only for disputes involving foreign persons, since in such disputes, contractual jurisdiction becomes the only possible way to determine the court in which the case should be heard.”
The head of the scientific direction of the Institute of Legislation and Comparative Law under the Government of Russia, Doctor of Legal Sciences Yuri Tikhomirov, noted that for the first time, as part of the Bratusev readings, a round table was held, specifically dedicated to the topic “Contractual elements in procedural law.” Legal scholars have discussed a number of interesting proposals.
Rules for filing a claim and required documents
At the pre-trial stage, documents are collected. The list of required documents includes the supply agreement and its annexes, a receipt for payment of the state duty, a copy of the plaintiff’s state registration, extracts from the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs for both parties, made no later than a month before filing the claim, as well as a notification of its delivery to the other party.
The text of the statement of claim must reflect the essence of the claim:
- it should be indicated on the basis of which the relationship with the buyer arose with reference to the contract;
- provide data on the reality of the delivery: invoices, invoices, sales receipts, acts and other documents. As a result, the defendant fails to comply with its material obligations;
- it is necessary to enter information about the terms of payment for the goods and indicate the relevant clauses of the contract;
- talk about the defendant’s failure to fulfill his monetary obligations and the resulting debt.
Also, when filing a claim, you need comprehensive information about the plaintiff and defendant:
- name of the organization that received the goods, or personal data of the individual entrepreneur indicating the registration number;
- registration address or actual place of residence, telephone, e-mail.
If no problems are foreseen with the plaintiff’s data, then information about the defendant can be obtained from extracts from the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs, which can be downloaded for free on the website of the Federal Tax Service of the Russian Federation. As a last resort, you can resort to the help of specialists.
Calculation of debt and cost of claim
Another aspect of receiving money underpaid for the delivery of goods is that the application indicates the exact amount of the following amounts:
- The amount owed for unpaid goods.
- A penalty specified in the contract, or interest for using someone else’s money in one’s own interests in accordance with Article 395 of the Civil Code of the Russian Federation. The penalty clause in the contract gives the supplier the right to “…%” of the delayed amount for each day of delay by the buyer. Interest for the use of other people's money is accrued only if there is no penalty clause in the agreement and they are calculated based on the key rate of the Central Bank of the Russian Federation.
- Legal interest in accordance with Article 317.1 of the Civil Code of the Russian Federation is provided for in advance in the text of the agreement. They are calculated similarly to interest on the use of other people's money.
You should know that an error in the calculations is not a reason for refusing to accept the application, but it is still better to involve specialists in the calculations.
The price of the claim affects the calculation of the state duty . When calculating the claim price, all the above amounts are taken into account. For example, if the debt under a supply agreement is five million rubles, and the penalty is 500 thousand, the cost of the claim will result in 5.5 million rubles, and the state duty will be more than 50 thousand rubles. It is not scary if the plaintiff makes a mistake when calculating. In this case, the court itself will recalculate.
Claims procedure
After the package of documents and the application are submitted to the arbitration court, preliminary hearings are held in order to evaluate the defendant’s arguments. After this, the positions of the parties are adjusted and clarified. Additional evidence is collected as necessary and then a main hearing is scheduled.
The procedure for repaying financial claims in accordance with Article 319 of the Civil Code of the Russian Federation follows the following sequence: first the penalty, then interest on the debt and finally the principal debt. If the defendant lacks funds, first of all the money goes to creditors and only then directly the amount of the debt.
Sometimes the arbitration does not agree to the supplier of the goods to compensate for losses. For example, if the goods are delivered in excess of the volume determined by the terms of the contract, albeit within the agreed deviations. The sender will be forced to prove the fact of delivery in arbitration based on primary accounting documents.
Evgeniy Baidalin
Arbitration lawyer. More than 10 years of experience
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The plaintiff’s arguments must be weighty enough to compensate for losses under the contract, including by presenting invoices, acceptance certificates and powers of attorney to receive the goods.
Commentary on Article 32 of the Code of Civil Procedure of the Russian Federation
The rule of contractual jurisdiction provided for in the commented article allows for the possibility of changing the territorial jurisdiction by agreement of the parties, with the exception of the exclusive territorial jurisdiction established in Art. 30 Civil Procedure Code.
It is not allowed to change the generic jurisdiction established in Art. Art. 23 - 27 Civil Procedure Code. Thus, for example, it is impossible, by agreement of the parties, to provide for the transfer of a dispute within the jurisdiction of a district court to the Supreme Court of the Russian Federation and, accordingly, vice versa. Agreements of the parties that change generic or exclusive territorial jurisdiction are invalid and do not entail any legal consequences.
The agreement of the parties on jurisdiction is of a mixed nature: substantive and procedural. Issues of the legal capacity and capacity of the parties, the powers of the persons concluding such an agreement, the validity of such an agreement are qualified as substantive, while the consequences of concluding such an agreement (determining the jurisdiction of the dispute) are procedural in nature.
The form of the agreement on jurisdiction is not specified in the Civil Procedure Code. Based on the fact that only the consequences of such an agreement are procedural in nature, it follows that the requirements for its form follow from the general provisions of the Civil Code on the form of transactions (Articles 158 - 163). So, for example, in accordance with paragraph 1 of Art. 161 of the Civil Code, transactions of legal entities between themselves and with citizens must be concluded in simple written form.
An agreement on changing the rules of general and territorial jurisdiction can be concluded in any form: either as a separate agreement, or as a clause on jurisdiction included as a separate clause in the agreement. The agreement of the parties on jurisdiction can also be expressed in petitions submitted to the court on the basis of clause 2 of part 2 of Art. 33 Code of Civil Procedure.
An agreement to change the general rules of jurisdiction can be concluded before the court accepts the application for its proceedings, i.e. until the initiation of proceedings in the case, namely until the date the court issues a ruling on accepting the application for proceedings and initiating proceedings in the case (see commentary to Article 133 of the Code of Civil Procedure). An agreement concluded after these dates does not entail legal consequences and should not be taken into account by the court when determining the jurisdiction of the stated claim, except for the case provided for in paragraph 2 of part 2 of Art. 33 Code of Civil Procedure (see commentary to Article 33 Code of Civil Procedure).
If an agreement on jurisdiction is included in the agreement as its component part, then when one of the parties to this agreement is replaced by assignment (Articles 382 - 389 of the Civil Code), the rights and obligations in terms of determining the jurisdiction of disputes are transferred to the other party, among other things. arising from such an agreement.
When determining the jurisdiction of a case based on the rules of the commented norm, it should be borne in mind that if a claim is filed against several defendants, but with only one of them the plaintiff has an agreement on jurisdiction, then the jurisdiction of this claim cannot be determined on the basis of such an agreement, but should be guided by the relevant rules of territorial jurisdiction.
