Syatchikhin A.V. Liquidated Damages: the Analysis of Development of the Domestic Court Practice

DOI: https://doi.org/10.15688/lc.jvolsu.2017.2.15

Alexander V. Syatchikhin, Master of Jurisprudence, Doctoral Student, Department of Entrepreneurial Law, Civil and Arbitration Procedure, Perm State National Research University, Bukireva St., 15, 614990 Perm, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it.

Introduction: the article is devoted to the analysis of development of the Russian court practice of liquidated damages. The latter (damages) are one of the ways of contractual determination of the amount of damages, originally formed by the legal practice of the countries of Anglo-Saxon law, and subsequently accepted by the systems of civil law justice and is widely used in the international transactions. Thus, in these cases there is a strict distinction between liquidated damages and a penalty. Moreover, in the Anglo-Saxon countries, the latter, in the sense that the domestic legislation gives it, is recognized as an invalid contract term, because its recovery does not correspond to the recovery function of civil liability in the field of contract law. Methods: in the preparation of the article there were used both the general scientific and specific scientific methods of cognition, and there were used the techniques of formal logic. Results: the author identifies several stages of development of the court practice on reimbursement of liquidated damages, in the early stages associated with a penalty, and later correctly interpreted by the domestic law enforcement authority. Conclusions: in the domestic court practice the gradual formation of the legal position regarding the possibility of the contractual determination of the amount of damages can be traced. In the first stage, the terms of the contract are recognized as inconsistent with the law, in the second one liquidated damages are associated with a penalty, in the third one the law enforcement authority acknowledges their conformity to the public law, and formulates the criteria of validity of the conditions about the contractual determination of damages. The perception by the court practice of the foreign system sets the corresponding vector of development of the contractual liability, in particular, illustrates the strengthening of private law in this sphere.

Key words: liquidated damages, damages, contractual liability, civil liability, remedies.

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