In this article we will tell you how you should behave yourself in the situation, when the counterparty suggests unfavorable or unfair conditions, and how you can cancel it within Court.
The Supreme Court in its Review dated 29.05.2024 indicated that onerous conditions cannot be included to the contract, if the party did not have the opportunity to waive them. Moreover, the condition may be fully compliant with the Civil Code, but the Court can make a decision that it is onerous.
First of all, we recommend you to tell in the Court that this condition makes the real disbalance and it is onerous for you. In judicial practice there are the decision to tell that parties from the contract are not in equal conditions, and the comparing of the signed contract with similar contracts.
There are can be conditions:
1) Conditions, which you need to accept in a desperate situation.
For example, when a lessee needs to extend the time of a contract with the different conditions, about what a lessor did not tell before. In this situation the lessee can refuse to extend the contract for a short time and at the old price.
2) Conditions, which the party has provided for and limited for own violations.
For example, in the case Nr. А19-10141/2023, the counterparty maintain the limit in sanctions for yourself. In such situation the other party have the right to ask the court about not applying this clause about limitation of the penalty. In situation, when the counterparty completely excluded responsibility for his violation, you need not prove in the Court that this condition is onerous. Such conditions are accepted null and void.
3) Conditions are economically unreasonable.
It usually refers to commissions that are imposed by companies for absolutely no reason at all. It refers to the bank activities. Banks often take commissions, but it must be included in their services in connection with their activities. If such actions are included in their services, they cannot take the separate fee for this.
Besides, equally important is to justify why the parties did not have equal bargaining power. We advise to indicate that a party has prepared its version of the contract, but did not give to other party an opportunity to make adjustments and negotiate the terms.
Here are a few arguments that may help you:
- The company is the economically weaker party to the contract. Accordingly, the company simply had no leverage over the other party, and therefore had to agree to unfavorable terms.
- The company has no chances to negotiate conditions with other companies. For example, your counterparty is the monopolist in the market, accordingly, you simply had nowhere else to go, the conclusion of the contract became a forced measure.
However, if you conclude the contract with the State, you shall be ready for the fact that rules about different conditions will not work. Because of that the contract with the State is concluded by the end of the contest, it cannot be changed. This approach is applied by the courts, referring to Article 428 of the Civil Code of the Russian Federation.
Therefore, we recommend you to you should cite evidences that you actually objected to terms in the contract that are onerous. For example, you were ready to communicate with the counterparty, but the other party refuse of it. We advise you to send a protocol of disagreement, which will list all the disputed conditions, and it is better to schedule a personal meeting to discuss the details of the contract. Thus, the act of the protocol of disagreement and will be your proof.
Also, we advise you to note that it is pointless to claim that the terms and conditions are onerous after the contract has been executed or in the course of litigation. There has been a lot of lawsuits, where the court has refused to find the disputed conditions onerous. For example, in case No. 02-2559/2024, the parties signed a protocol of disagreement, which prevented a party from claiming that it was in disagreement with the terms.