Recovery of damages in court, concept and composition of damages, collection procedure

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.

Main aspects

Often, a controversial situation, or other rash actions of the defendant against the plaintiff in pre-trial proceedings, lead to civil procedural proceedings, which implies the regulation of the conflict in the manner prescribed by law.

In this case, one of the parties that infringed the rights of a citizen or caused him any damage undertakes to compensate for all losses incurred. Attempts to resolve such attempts to resolve the situation peacefully, as a rule, do not bear any fruit.

That is why the legislation of the Russian Federation and the competent authorities, which monitor the implementation of the legal norms in force on the territory of the Russian Federation, stand up to protect the interests of citizens.

Initial Concepts

Before you become more familiar with the rules for filing a claim for compulsory recovery of damages, you should familiarize yourself with a number of concepts that are closely related to this point:

Property	A movable or immovable property object that belongs to a certain citizen on the basis of ownership and confirmation in documentary form
Compensation for damage	Full or partial compensation by the defendant for moral or material damage caused to the plaintiff based on the decision made
Statement of claim	A document that is submitted to the court with certain requirements regarding the defendant and compensation for damage caused by him
Recovery of damages	The procedure for forced collection of material or moral damage that was caused by the defendant to the plaintiff due to certain circumstances
Court	The government apparatus responsible for resolving certain issues or disputes between the population of the Russian Federation in accordance with current legislation

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Taking into account these concepts, it is possible to study in more detail the procedure and rules for drawing up a statement of claim for compensation for damage caused by the defendant to the plaintiff.

Main reasons for contacting

In order to go to court for damages, certain grounds must be present, namely:

causing physical harm;
damage to the plaintiff's property;
receiving insults from the defendant;
calling for liability for libel;
damage to the property or health of the plaintiff’s relatives;
unlawful actions in relation to the interests of the plaintiff;
various offenses where the plaintiff suffered.

All these points are the reason for the immediate settlement of the controversial situation in court and the defendant’s call for compensation for moral as well as material damage that was caused due to his fault.

Legal regulation

The settlement of the issue regarding the defendant’s call for mandatory compensation for damage caused is based on the following regulatory legal acts of the Russian Federation:

Federal Law No. 143 of November 15, 1997 “On acts of civil status”;
legal acts regulating the activities of courts in Russia;
Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 11, 2012 No. 29 “On the application of civil procedural legislation by courts”;
Civil Procedure Code of the Russian Federation part No. 2.

All these laws are designed to regulate the legal relations of citizens on the territory of Russia, and also, if necessary, to call the defendant to responsibility and mandatory compensation for moral and material damage caused to them intentionally or unintentionally.

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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.

Rules for filing a claim

Filing a claim for damages is a legal way to protect the property rights and interests of the injured person. It is advisable to initiate a trial for compensation for damage suffered if a citizen has evidence indicating the guilt of a specific person or group of persons.

To correctly write a statement of claim for damages, you should familiarize yourself with its structure and the rules for drawing up the document:

Structure and content of the claim:

The introductory part of the statement of claim is intended to indicate the name, address of the judicial institution, personal and contact information of all parties involved in the process;
Cost of the statement of claim;
The descriptive part of the claim begins with clarification of the main points of the conflict situation. That is, it is necessary to find out what type of incident occurred, the date, time and location of the incident;
Indicate the reason that served as the basis for applying to a judicial institution to recover damages;
The amount of funds calculated taking into account the harm caused to the citizen;
The applicant’s demands are to recover damages for damage caused to the person’s movable or immovable property. The plaintiff’s demands must be justified, and the stated circumstances of the incident must be confirmed by documents;
List of documents that act as attachments to the statement of claim;
Finally, the claim is dated and signed by the plaintiff.

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When collecting damages from the director

Before moving on to considering the rules for filing a statement of claim for the recovery of damages from the former director of an LLC, it is worth determining the role of a specific person and the jurisdiction of such cases. It should be noted that the director of the enterprise is one of the persons who, according to the Labor Code of the Russian Federation, are employees of the organization. Therefore, he is responsible for compensation for damage not only to other subordinates, but also to the higher management of the organization, members of the collegial body and the general director.

The procedure for collecting damages from the former director of an organization is regulated by the Civil Code of the Russian Federation. Such cases are subject to the jurisdiction of institutions of general jurisdiction. It follows from this that a statement of claim can also be filed in an arbitration court.

The principle and rules for drawing up a claim for recovery of damages from the director of an LLC do not differ from the generally accepted ones. The text of the statement of claim also requires to reflect the personal data of all participants in the process, the essence of the conflict, the applicant’s requirements, and the expected amount of payments for the damage caused. Documents proving the legitimacy of the plaintiff’s claims against the defendant are attached to the written appeal.

When considering a claim for recovery of damages from the former director of an LLC, the court pays special attention to the analysis of the written evidence, as well as verification of the arguments presented by the plaintiff and the defendant. In addition, the following nuances are taken into account:

Was there a cause-and-effect relationship between the director and the incident;
Was this part of his job responsibilities?
Did he know the possible consequences?

The innocence of the former director of the enterprise will be confirmed if the losses incurred by the organization were the result of a decision made by members of the collegial body or constituent assembly. In such a situation, a statement of claim for damages should be filed against those members of the organization's management team who voted in support of the actions that caused the damage.

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According to the lease agreement

The procedure for collecting damages under a lease agreement is regulated by Article No. 15 of the Civil Code of the Russian Federation . According to the content of this article, the lessor has the opportunity to recover from the lessee the damage caused to him if there are legal grounds and vice versa. The procedure for compensation for damage caused is carried out in two stages. First of all, it is necessary to take measures to resolve the dispute out of court by sending a written notice to the second party to the lease agreement. The next step should be to file a claim in court to recover damages under the lease agreement.

Reasons for filing a claim:

The lessor did not provide the property within the required time frame;
The owner of the property concealed significant defects in the premises provided for rent, which caused significant costs to the lessee;
Recovery of damages from the tenant will be legal if the citizen has not presented documents for the property;
The lessor also has the right to file a claim if the lessee has violated the terms of the lease agreement;
The terms for calculating rent were violated;
If, under the terms of the lease agreement, the recipient of the leased property has not fulfilled the obligations assigned to him, the owner of the property has the right to file a claim in court;
The lessor has the right to initiate the process of collecting damages if, during the use of the premises, third parties appear who do not have rights to the leased property.

The statement of claim for recovery of damages under the lease agreement is sent for consideration to the arbitration court at the place of residence or registration of the person responsible for causing the damage. The document is drawn up in accordance with standard requirements and structure. When drawing up a claim, it is important to remember the need to clarify the details of the lease agreement, the grounds for going to court, the amount of damages and the plaintiff’s claims. A copy of the lease agreement must be attached to the statement of claim.

To recover damages from the guilty party, regardless of who it is the tenant or the landlord, during the court hearing you will need to prove:

The fact of causing damage to a property or a specific person;
Establish cause-and-effect relationships;
The defendant's guilt in the incident.

The law establishes that the plaintiff in the case does not have the right to demand recovery of damages, the amount of which significantly exceeds the actual amount of damage.

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.

How to apply and where

According to the law, the procedure for collecting damages should begin not with filing a statement of claim, but with resolving the controversial situation in a peaceful manner. To do this, you should use the option of sending a claim to the person responsible for the incident. The text of the claim must indicate the applicant’s desire to recover damages in monetary terms, the amount of payments, and also provide evidence of the described arguments. In addition to the information provided, it is recommended to describe the citizen’s further actions if his demands are not met.

A written appeal is sent to the person responsible for the incident for consideration in person or through the use of postal services. If the recipient of the claim refuses to compensate for the damage suffered by the action or inaction of the person, the citizen has the opportunity to send a statement of claim to recover damages to the court.

Consideration and decision-making on claims of this category falls within the competence of arbitration courts. To initiate legal proceedings for the recovery of damages, a claim is filed with the judicial authority at the place of residence or registration of the defendant. Submission of documentation to the court is accompanied by the payment of a state fee, the amount of which is calculated based on the amount of compensation.

During the consideration of the case, the plaintiff will have to prove the following facts:

Damage to his property;
The defendant’s guilt in the situation that happened;
Confirm that the amount of damages to be recovered corresponds to the amount specified in the text of the statement of claim;
If an agreement was signed between the parties, it is required to prove the fact of violation of its terms on the part of the defendant (agreement for the provision of services, lease).

To confirm the legality of their claims to recover damages from the potential culprit of the incident, the plaintiff often has to resort to the help of independent experts. The costs of attracting specialists are compensated at the expense of the plaintiff. If, as a result of the trial, the person’s demands set out in the statement of claim are satisfied by the judge, the defendant undertakes to pay not only the losses incurred by the person, but also to compensate for the costs of the examination.

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The defendant’s actions in the case will be aimed at presenting evidence confirming his innocence of causing damage to the plaintiff’s property. Therefore, in order to increase the chances of a positive outcome in the case of recovery of damages, the victim should become familiar with the specifics of filing a claim and the nuances of the procedure.

If you have questions, consult a lawyer. You can ask your question in the form below, in the online consultant window at the bottom right of the screen, or call the numbers (24 hours a day, 7 days a week):

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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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.

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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