Claim for compensation of lost profits

Claim for damages: where to start?

A claim for damages must be motivated and substantiated in court. To hold the perpetrator accountable, you must prove the existence of the offense. In this case, we mean identifying:

the fact of harm;
the guilt of the citizen who caused the damage;
illegality of a particular person’s behavior;
cause-and-effect relationships between the actions of the victim and the harm-doer;
proof of the amount of damages caused.

If you can prove the existence of an offense, you can file a claim for damages in the appropriate court. Appealing to the arbitration court will help to deal with the problem and the offender in the field of entrepreneurial activity (disputes between organizations, between individual entrepreneurs). A claim for recovery of damages against a citizen is filed in a court of general jurisdiction. The victim must remember that damage refers to negative property consequences that arise due to a violation of the property rights of the affected citizens.

If you are a plaintiff who wants to file an application for recovery of damages with the judicial authorities, you must prove the illegality of the actions of the defendant, from whom it is necessary to recover a certain amount, and assess the losses. If the plaintiff has claimed damages related to failure to fulfill certain clauses of the contract, it is necessary to determine how well-founded these allegations are. In addition, do not forget that the cost of lawyers’ services in civil cases must also be presented to the Defendant as legal expenses.

Drawing up an application for recovery of damages is a specific process that requires contacting an arbitration lawyer to speed up the proceedings and prepare the necessary documents. The procedure for collecting damages is established by procedural legislation and requires execution.

Recovery of damages caused is carried out in three possible forms. We are talking about disputes in cases of harm and failure to fulfill proper obligations. To recover damages caused, it is necessary to determine their size and type. In Russian legislation there is a concept of lost profits and real damage. Only a specialist – an arbitration lawyer – can determine what problem your situation is related to.

Proper recovery of damages caused or any other issue regarding the recovery of funds from the debtor must be carried out in accordance with the established standards of the Civil Code. A claim will need to be filed. Claims as steps towards pre-trial settlement of the conflict, as well as assistance from our lawyer in cases of collection of losses and debts.

Package of necessary documents

The statement of claim for damages must be accompanied by documents confirming the guilt of the defendant and the legality of the plaintiff’s claims. Depending on the situation, the documentation package for the court may differ, but in general the list of applications is as follows:

Copies of the statement of claim. Their number depends on the number of participants in the trial;
A check confirming payment of the state duty;
A document that presents the calculation procedure and the amount of damages to be recovered;
Title documents for the property in respect of which compensation for damage is being made;
If an independent examination was carried out, an expert opinion is attached to the statement of claim;
If the plaintiff has made attempts to resolve the dispute out of court, this fact should be confirmed.

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In certain cases, the statement of claim for damages will need to be accompanied by:

Written testimony of witnesses;
Lease agreement for residential and non-residential premises;
Receipts, checks, bank statements indicating the expenses of the injured person to restore the object after causing damage to it.

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Recovery of damages under a purchase and sale agreement

A sales contract is concluded for the purchase of any goods by one person from another person - the seller. For individuals purchasing goods for personal consumption, the most common agreement is a retail purchase and sale agreement. In this case, the buyer may be sold a product of inadequate quality, which will entail losses for him.

A consumer whose rights have been violated by a manufacturer or seller has the right to demand compensation for losses caused to him in full. These legal relations are regulated, in particular, by the law on the protection of consumer rights, but not only.

For example, you purchased a laptop, and also purchased a computer mouse and a computer mouse pad for the laptop. During use, the laptop began to randomly turn off and reboot. When you contacted the seller within the period established by law, in connection with the discovery of defects in the product, with a request to replace the product or return the money, you received a refusal to your request, the product was not accepted from you.

What to do in this situation?

Please note that the laptop is a technically complex product, and therefore a request for its replacement can be made within 15 days from the date the product was delivered to you. After 15 days, the specified requirement can only be presented:

if significant flaws are found in the laptop, which can be confirmed by an examination
if the seller violates the statutory deadlines for eliminating defects;
if various defects of the laptop have been repeatedly eliminated, and in total it was impossible to use it for more than 30 days during any year of the warranty period.

So, you discovered shortcomings in the laptop, the seller refused to replace your laptop. Your next action will be to write a written complaint indicating all the defects of the product, as well as indicating your requirements. Next, you submit the claim to the seller under the mark on your copy of the claim.

If the seller accepts your goods for examination, you have the right to be present during the examination; inform the seller about this. If there is no response from the seller within 10 days, you must submit the laptop for examination to determine the defects of the product, notifying the seller of the date and time of the examination.

Taking into account the examination conclusion, if it is not your fault, you present a demand to the seller to compensate you for losses incurred in connection with the examination due to the sale of goods of inadequate quality.

Also, your requirements will depend on what you want: return the product and get your money back or replace it with a similar product. You must indicate the relevant requirements in the claim.

In this situation, the losses will be your expenses for the examination, as well as for the purchase of a computer mouse for a laptop and a computer mouse pad, if you wish to return the product and get a refund.

At the same time, if you purchase a new laptop to replace a laptop with defects at a higher cost, the difference in the cost of the low-quality laptop you originally purchased and the new laptop is your losses, which you have the right to present to the seller of the low-quality product. In this case, there should be no abuse on your part, which consists in purchasing the most expensive laptop to replace a laptop with defects, and then submitting claims to the seller for compensation for the difference in the cost of the laptops, that is, you should purchase a similar laptop.

If, during use, a laptop with defects exploded, or a laptop caught fire, which resulted in damage to the property and/or health of the consumer, the latter also has the right to make claims for damages in the form of damaged property, costs of eliminating the consequences of the explosion or fire of the laptop, expenses for treatment.

The seller must satisfy your requirements within 10 days under the Consumer Protection Law. After the expiration of the specified period, the buyer has the right to file a claim for recovery of losses from the seller incurred for the examination, as well as other losses (the cost of a computer mouse, mouse pad, the difference in the cost of the originally purchased laptop with defects and a new laptop, etc.), in in the event of your request for termination of the contract and return of funds.

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Recovery of damages under a supply agreement

A supply agreement is a type of purchase and sale agreement, which is concluded between a person engaged in business activities and a person by whom the goods are purchased for use in business activities or for purposes not related to personal, family, household and other similar use.

For example, organization A has undertaken to supply electrical components to organization B, which operates using the corresponding components. The delivery contract stipulates the delivery period. This condition is essential. Organization A failed to deliver within the time period specified in the contract. Organization B sent organization A a notice of cancellation of the contract. Since organization B, taking into account the specifics of its activities, needed electrical components by a certain date, it was forced to purchase the corresponding components from another organization at a higher price.

Since organization B purchased the goods at a higher price, a claim for compensation of losses may be sent to organization A in the form of the difference between the price specified in the supply contract between organizations A and B and the price at which the goods were purchased to replace those not delivered on time goods.

In this situation, there is a set of circumstances to satisfy the requirements of organization B. If organization A refuses to voluntarily compensate organization B for losses, the latter has the right to file a statement of claim in court, based on the results of consideration of which the court, having established the presence of the entire set of facts, will make a decision to satisfy the claims, subject to forced execution.

The general period for consideration of a claim is 30 calendar days, however, a different period may be established by the contract. It is worth noting that whether the court makes a decision in your favor depends on the circumstances of the case, as well as the evidence you provide in the case.

Losses under supply contracts may be associated with late delivery of goods, delivery of goods of inadequate quality, costs of examination, etc.

Justification of the amount of lost profits: abstract and concrete losses

Specific damages are based on the documents submitted by the plaintiff. These can be calculations based on financial statements for previous periods, as well as estimates, business plans or business models. In some cases, lost profits are calculated based on the parameters laid down in the contract (as in the example given with a lease).

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In the absence of documents (taking into account measures for making a profit), abstract damages calculated on the basis of approximate values (for example, the average market price) may be presented.

Previously, this category was applied only in accordance with Art. 524 Civil Code of the Russian Federation. Art. is currently in effect. 393.1 of the Civil Code of the Russian Federation, which introduces similar rules for all types of obligations, subject to:

termination of the contract;
presentation of a claim by a party to the contract (Resolution of the 9th AAS dated September 19, 2016 No. 09AP-37328/2016).

The difficulty of establishing the amount of lost profits can be seen in the example of judicial practice on credit (loan) agreements.

Recovery of damages under a contract

Under a contract, the contractor undertakes to perform certain work according to the customer’s instructions and deliver the result of the work to the customer.

Violation by one party of the terms of the contract, including deadlines for completing work, non-fulfillment or improper fulfillment of obligations, or termination of the contract may lead to losses for the other party under the contract.

Often contractors perform work with deficiencies. In this case, the customer has the right to file a claim for compensation for damages in connection with poor quality work, demanding compensation for actual expenses incurred, as well as expenses that he will have to make to restore his rights, with reference to the general provisions on compensation for damages and special regulatory rules work agreement.

Expenses for paying for an examination, which confirms the fact of poor-quality work, and expenses associated with eliminating deficiencies, including the purchase of materials, can be claimed as damages; expenses that will be incurred to eliminate deficiencies, etc.

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The concept of lost profits under Art. 15 Civil Code of the Russian Federation

In accordance with Art. 15 of the Civil Code of the Russian Federation, lost profits represent lost income. The general provisions on compensation for damages are discussed in more detail in the material on the website at the link What is lost profit (nuances)?.

Currently, new standards and clarifications have appeared on this topic:

the opportunity has been provided to claim not only specific, but also abstract damages (Article 393.1 of the Civil Code of the Russian Federation);
the court does not have the right to refuse a claim only on the grounds that the calculation of losses is approximate and is probabilistic in nature (clause 14 of the resolution of the Plenum of the Armed Forces of the Russian Federation “On the application by courts...” of June 23, 2015 No. 25).

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However, this does not mean that the plaintiff is completely relieved of the burden of proving his or her allegations.

Recovery of damages under a service agreement

The contract for the provision of services is quite common, since the services are provided in different areas, including dental, psychological assistance services, consulting, communication services, etc.

According to the specified agreement, the executor is obliged to perform some actions or carry out certain activities.

How well certain services will be provided depends on the professionalism of the performer. If the contractor refuses to fulfill his obligations under the contract, he must compensate the customer for all losses incurred by him.

For example, consider the following situation:

An individual decided to purchase real estate. To provide him with information and advisory services when completing a transaction to purchase the relevant real estate in order to exclude any violations of the law, the individual contacted a realtor, paying the amount agreed upon in the contract. In accordance with the agreement, the realtor undertook to evaluate the property being purchased by an individual, check for encumbrances and restrictions on the property, and verify that the seller has legal grounds for selling the relevant property. After concluding the contract and receiving funds, the realtor did not fulfill his obligations under the contract.

In this situation, an individual, first of all, must request in writing from the realtor information about the fulfillment of his obligations under the contract with the provision of evidence, setting a deadline for a response.

If there is no response to the request or a response is sent that no actions were performed, the individual must submit a claim to the realtor for compensation for damages in the form of the amount paid under the service agreement.

Also, the realtor’s responsibilities under the contract may include checking the purchase and sale agreement and/or documents to be transferred for state registration of rights. During the submission of documents for registration, state registration of rights may be suspended due to deficiencies in the documents. In this case, an individual can turn, for example, to a lawyer to provide assistance in eliminating the shortcomings that served as the basis for the suspension of state registration of rights, which will entail additional costs for the individual to pay for the services provided by the lawyer. The individual subsequently has the right to present additional expenses incurred to the realtor with a claim for compensation for losses caused by the latter’s improper provision of services in checking the contract and documents for compliance with legal requirements.

If there is no response to the claim within 10 days, you should seek judicial protection of your rights.