Nikolay Rossinsky | comments for the «Advokatskaya Gazeta»: Supreme Court: a failure to enter into a lease agreement because of disruption of the construction deadlines is not a proof of lost profit

The Court noted that if a failure to meet the deadline for performance of an obligation is obvious for the creditor, it would be unreasonable for him to make transactions in respect of the missing property and undertake any obligations to third parties.

Attorney of ART DE LEX Real Estate and Construction Practice Nikolay Rossinsky considers that the Court’s legal reasoning is aimed at consolidation of the positions stated previously in clause 4 of Resolution of Plenum of the Supreme Court of 24 March 2016 г. No 7, which stipulates that the rule made by the court on determination of the amount of damages to be adjudicated by court in case of impossibility to establish their extent with a reasonable degree of certainty is also applicable to lost profit. Moreover, the Judicial Chamber on Economic Disputes has once again reminded that a creditor, substantiating lost profit amount, is free to bring forward not only evidence of measures taken by him to gain benefit (clause 4 Article 393 of the RF Civil Code), but also any other proof of the possibility of its gaining (clause 3 of Resolution of Plenum No. 7).

«It is noteworthy that lower-instance courts, stating these provisions in the cancelled judicial acts, selected as the grounds for the claim dismissal a failure to provide evidence of preparation for leasing out the facility (a lease agreement, including a preliminary one, an advertisement on leasing out the premises, correspondence with potential tenants). It is on this point that the Supreme court focused its attention, reasonably indicating that undertaking such obligations in a situation, when the facility completion deadline was obviously missed, would be extremely unreasonable and risky for the plaintiff», — said the Attorney.

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