Treaty of Delimobile. Abstract and divide
According to Delimobile, all and sundry have trodden down nicely. Particularly naive citizens even admired the fact that the company proposed limiting liability to a fixed amount. So far, there have been no stories with dismantling according to the new rules, what will be obtained in the end is not entirely clear. But we must understand that the agreement has not gone anywhere. That means watching and reading it is worth it carefully, which, in fact, everyone around is talking. Like, read the contract and then do not be surprised. OK. Let's read it. The reading instruction is this: I will write in Russian, but give more precise wording in brackets. If you feel sorry for the brain - do not read the brackets :-)
To begin with, the vehicle lease agreement that the Delimobil service has developed for its customers is an accession agreement, which is not only directly indicated in the text of the agreement, but also follows from how it is arranged (the actual procedure for concluding it ).
Remember this important phrase “Agreement of Accession”. This is a pretty strong trump card.
The specificity of the merger agreement is that the client (the party to the contract ) has the right to demand termination or amendment of the contract if the merger agreement contains explicitly bad ( burdensome ) conditions for the merger, which, based on common sense ( their reasonably understood interests ), are not would accept if they were given a chance ( if she had the opportunity to participate in determining the terms of the contract ). We read paragraph 2 of Article 428 of the Civil Code of the Russian Federation, and we have a bit of happiness in the future, because the court may well amend or terminate a clearly unfavorable contract at the request of the loser ( weak counterparty ).
Moreover, as indicated in paragraph 9 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 16 “On freedom of contract and its limits”: “... since according to paragraph 4 of Article 1 of the Civil Code of the Russian Federation no one has the right to take advantage of his unfair behavior, the weak side of the contract "he has the right to declare the inadmissibility of applying unfair contractual conditions on the basis of Article 10 of the Civil Code of the Russian Federation or the invalidity of such conditions under Article 169 of the Civil Code." That is, the client of the service, in case of disagreement with the lawlessness ( contractual sanctions applied against him ), can send to hell ( justify the invalidity of these terms of the contract with reference to the above judicial position ). I will not argue that the chances are great, but they are.
We proceed to assess the legitimacy of lawlessness ( disputed provisions of the contract ).
Let's start with the provisions on “triple liability”, around which there is a main howl: shaking penalties plus losses from the loser ( laying on the debtor ) plus losses does not contradict the law. Alas. Art. 394 Civil Code allows the creditor ( company ) to recover the penalty on top of all losses, if this is expressly provided for in the contract. So the law is not violated here.
Compensation of losses in full means that, as a result of their compensation, the creditor must remain at his own expense ( be put in the position in which he would be if the obligation were properly performed ). Therefore, losses include both real damage and lost profits (Article 15 of the Civil Code).
BUT! However, some fines can and should be fought, if that. Even if the court finds the forfeit to be legal, it does not deprive you (the interested party ) of demanding its reduction, referring to the rules of Art. 333 of the Civil Code of the Russian Federation. This article is generally very useful for understanding to everyone who sees draconian sanctions in their treaties, because it is about the proportionality of real damage and sanctions.
In this part, the court will need to take into account the explanations of the Plenum of the Supreme Court of the Russian Federation set forth in the Resolution of March 24, 2016 No. 7 “On the application by the courts of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations”, in particular, on the signs of obvious disproportion of the penalty to the consequences violation of the obligation, and, in particular, that the penalty, as a form of liability, must be associated with the violation.
Well, here we begin to fight, because, for example, monetary compensation for the administration of responsibility (clause 5.28 of the contract) is a clear disproportion. At the very least, the loss of the company when receiving a fine from a client looks controversial, given that the money is debited from the card automatically ( without acceptance) It is also debatable that the proportional increase in compensation depends on the amount of write-offs, since the amount of administration should not depend heavily on the amount of fines. Clients, on the other hand, do not pay compensation for the conclusion of the contract, although the actions of the company’s managers to conclude the agreement can also be called “administration”.
Now the main thing is that this does not turn out to be advice ...
A separate song is the terms on involving only an expert named the landlord in the damage assessment. What he counts there, we all understand. Exactly the same thing, the provisions of clause 2.8.8 of the agreement stating that the assessment of the hit ( legality of administrative fines imposed for traffic violations and the amount of damage ) is determined solely at the discretion of the lessor. These provisions cannot be called hell ( discriminatory ). The driver-user of the car cannot be deprived of the rights and opportunities granted to him by law: the right to appeal ( contest) administrative fines, participation in proving the amount of damage. The freedom of contract to which the company refers should not lead to infringement of the legal capacity of the other party. Even more in Russian - if the provisions of the contract are contrary to the law, then they do not care. And by law, you have the right to participate in everything that determines your future financial losses.
Next, we have clause 5.7 of the contract, which is devoted to all other points for which you will have to answer if something happens ( grounds for customer liability ). In normal life ( according to the general rules for compensation for harm ), the sufferer ( causer ) is exempted from compensation if he proves that the harm was caused not through his fault.
Guilt and innocence are important concepts.
Innocence means that he normally handles the car ( with a normal degree of care and discretion, the car user took all measures to save the rented car ). However, clause 5.7 of the contract says that you fall into the headstock, even if you don’t really have anything to do with it (the client’s responsibility for damage and other damage to the car even “by chance”, even when the client’s actions during the “rental session” were not negative consequences ). For example, it turns out that if a car is accidentally stolen when you go to the store, then you will reimburse its cost. But after all, innocent liability for harm is provided by law (part 2 of article 1064), and not by contract. This is another argument against “random” customer liability.
Disclaimer. In general, what the client of Delimobil service can count on in the event of a legal dispute with the company is not an easy question. The fact is that it is absolutely impossible to predict the prospect of any legal dispute in any way. But still we have the argument:
1. Obviously disproportionate, “draconian” sanctions that were “imposed” on the consumer under the contract, he can dispute with reference to the specifics of the contract of accession. If you follow the rules of the Civil Code and the position of the Supreme Court of the Russian Federation on the contract of accession, it turns out that the consumer, as a weak side of the contract, has the right to defend itself against unfair terms of the contract (for example, several types of fines for one violation, obvious discrepancy between the amount of the fine and the amount of damage, caused to the company, etc.) to speak about the inadmissibility of abuse of the right (Article 10 of the Civil Code of the Russian Federation) or the invalidity of such contractual terms (Article 169 of the Civil Code of the Russian Federation). If the court finds the consumer's arguments justified, it will refuse the company regarding the application of these provisions of the contract to the lessee of the car.
2. Even if the court agrees with the legality of the forfeits, this does not deprive the interested party of the right to demand its reduction (according to the rules of Article 333 of the Civil Code of the Russian Federation). For example, there is a so-called monetary compensation for the administration of responsibility in the contract (clause 5.28 of the contract). The rationale in favor of reducing this penalty (if not a complete exception) may be this: the company's losses when receiving a fine from a client look controversial, given the direct debit of money from his card. The company does not provide a positive or convenient service for the offending client, writing off the fine. As a result, you can try to reduce or completely refuse to recover such fines from the client of the service.
3. According to customers of the service, in the event of an accident, documents on damage assessment carried out on the initiative of Delimobil are not issued to them. Here, the company obviously relies on clause 2.8.8 of the contract on involving only an expert named by the lessor in assessing damage, that the assessment of the legality of administrative fines imposed for violation of traffic rules and the amount of damage is determined solely at the discretion of the lessor. Here again, the client of the service can put forward his rights against the company as an affiliate and refer to the inadmissibility of abuse of the right.
4. If you challenge paragraph.5.7 of the contract in terms of “objective imputation”, ie entrusting the client with all the risks of theft and damage to the rented car, the court may very well side with the user and refuse the company to recover from the lessee this damage and the corresponding fines.
(C) Alina Tukhvatullina. Kirill Gotovtsev