The enrichment of the devaluation of the recognized grounds for renegotiation


In the card file of arbitration Affairs published the full text of the decision of Arbitration court of Moscow under the claim “Vympelcom” seeking the renegotiation of the contract with the company “Tizpribor”, which the mobile operator has leased the offices. Earlier it was reported that the court satisfied the claim “Vympelcom” demanding to change the contract with “Tizpribor” so that the rate at which cellular operator has to pay the lessor for the rented rooms, never exceeded 42 rubles per dollar. However, the reasons which led the judge to make such a decision became known only now, after the publication of the reasoning of judicial decisions.

According to the judge, because of the fall of the ruble exchange rate charged by the company “Tizpribor” rental fee (under the terms of its contract with VimpelCom lease payments were last made in rubles based on the official dollar rate set by the Central Bank on the day of payment) significantly exceeded the market average.

“The size of the enumerated fee shall not exceed the normal rates paid for the rent of similar premises in the locality. A significant excess of the market value of the rent … may entail a significant amount of unjust enrichment,” reads the court’s decision.

Earlier it was reported that the court satisfied the claim “Vympelcom” demanding to change the contract with “Tizpribor” so that the rate at which cellular operator has to pay the lessor for the rented rooms, never exceeded 42 rubles per dollar. However, the reasons which led the judge to make such a decision became known only now, after the publication of the reasoning of judicial decisions.

It turned out in particular that the court refused to satisfy the requirement of “VimpelCom” on termination of the lease due to the growth of the dollar, as itself the change in exchange rate is not a significant change in circumstances which would give the right to terminate the contract. In the court’s decision emphasizes that exchange rates are constantly changing, and the plaintiff could not know about it, and also such changes, which “could lead to the onset of adverse effects”, and voluntarily assumed this risk.

However, the request of “Vympelcom” on entering into the contract with “Tizpribor” item, which is used for settlements between the companies, the dollar could fluctuate only in the range from 30 to 42 rubles. rubles, the court granted. Calculations at the current exchange rate, as noted in the court’s decision may result in the unjust enrichment of the lessor.

Member of the investment Committee of the group of Eastern Property Holdings (EPH, it includes “Tizpribor”) Alexander Nikolaev believes that the court violated the principle of freedom of contract. In conversation with the correspondent of “Vedomosti” Nikolaev explained that the court did not take into account the fact that the “Tizpribor” also has monetary obligations to creditors, and therefore, the conclusion that obtaining undue profit is erroneous.

According to experts, the court’s decision is sets a dangerous precedent and may lead to revision of many other treaties. Under the threat there can be any agreement on the provision of services, construction contracts, even about the administration of current accounts, explained to “Vedomosti” partner Herbert Smith Freehills Alexei Panich. According to him, the client will be able to file a lawsuit against the Bank simply on the grounds that another Bank, the Commission was lower.

Estimated Eugenia Semenova from JLL, about 50-70% of the lease agreements on the market of class A offices in Moscow are concluded in foreign currency. “In fixing rates on all these contracts on the declared rate for the sector is short of about $600-700 million of lease payments and the capitalization of the objects will fall to $6-7 billion,” – calculated the expert.

Adopted by the Arbitration court of Moscow the decision could lead to the revitalization of the all-Russian movement of currency mortgage borrowers seeking conversion stipulated in credit agreements of amounts in Russian rubles at official Central Bank rate at the date of conclusion of the credit agreement. Thus, a person who gets a mortgage, for example, in late January 2005, will be required to repay the debt balance, based on the exchange rate is about 28 rubles per dollar.

Previously borrowers already sought assistance to the President of Russia, but Putin the idea is not supported. In the “Straight line” he said that the people who took in the banks foreign currency loans themselves took the risk of exchange rate differences. The state can and should help people who have taken mortgage loans in foreign currency, the value of which increased sharply as a result of the devaluation of the ruble, but this should not be more support for ruble-denominated borrowers, the President said.

In the beginning of 2016 in Moscow held a number of shares of the exchange of food, which requires them to convert their loans. The protesters blocked the 1-St Tverskaya street, down into the Moscow river the coffins with the names of the “offended” their banks, picketed and even stormed Bank offices.