Case study by lawyers: customer and developer
- Tutorial
Once again, I want to raise the topic of relations between customers and developers, programmers. Both that and others do not tire of stepping on the same rake, making out (or not making out) their mutual relations when developing and / or bringing to mind sites and applications.
We came across several exactly identical cases in a row. They were so identical that we felt a little creepy. “This is a sign from above! We are writing an article, ”we decided.
We are sure that one way or another you have come across a similar scheme.
So, let's put together our similar cases and make one generalized one.
The man found a programmer who, at a reasonable price, agreed to update his site.
All negotiations were conducted, as is now customary, in instant messengers or social networks.
We agreed on the general conditions, and the programmer, when meeting in a cafe, handed over to the customer two signed copies of the contract for review. The customer took them and, returning to the office, transferred a 100% advance payment to the developer for the first two months of work.
A month has passed, but there is no result of work. The second one passed - there is no result. And then after a thorough and nervous correspondence, everything in the same messenger, the customer received the answer from the series: "You see, the work is slow, because there are some objective difficulties, but everything will be done soon." Then the customer decides to conduct a small investigation of his own, or the programmer, tired of making excuses, blunders himself, saying, "the problem is with third-party programmers."
It turned out that a smart guy found subcontractors to fulfill the order (of course, for completely different money). Without paying them a single ruble, he demanded a result from them, which, rightly judged, they were in no hurry to give out completely.
As a result, the customer concluded a contract directly with the very subcontractors who did all the work for him efficiently and on time.
Yes, yes, all those cases that we mixed here contained this stage! Sooner or later, one way or another, the customer came to real performers. At this point, the problems of the one who initially concluded the contract with the customer were just beginning.
What is it called ?! And this is called, from the point of view of the law, unjust enrichment.
In this case, the intermediary who made the prepayment and did not perform the work properly was unreasonably enriched. Some part, of course, was completed, but it was not handed over and was not legally accepted under the acts.
As a result, a debt appeared to the intermediary before the customer, which the latter, naturally, was not going to repay. And the customer considers the actions of the intermediary to conclude a contract with a subcontractor illegal.
Suppose that the situation could not be resolved through negotiations and had to help the customer return the money through the court. There are fewer similarities: some intermediaries agreed to return the prepayment, some customers did not want to waste time on litigation.
We will not describe all the vicissitudes of the proceedings, we will focus on the main points that were the subject of the court’s investigation:
1. The absence of an agreement signed by both parties (the customer did not sign and did not give the intermediary a signed copy) generates non-contractual obligations, which entails the fact that the court will rely only on factual circumstances, that is, on the fact of the transfer of money and on the fact that the fact of the work is not documented.
2. All correspondence in instant messengers and social networks (even notarized) without a contractual relationship indicating this type of communication and acceptance of work does not have much evidentiary value for the court.
3. The absence of signed acts of acceptance of work indicates that the work has not been completed and not delivered.
As a result, the court satisfied the claim of the plaintiff-customer and recovered from the defendant-intermediary all the funds transferred by the customer.
In addition, the customer filed a claim before filing a lawsuit with the court. What for? Then, that on unjustifiably paid monetary funds interest is accrued in accordance with Art. 1107 of the Civil Code of the Russian Federation from the moment when the enriched person knew or should have known about the groundlessness of his enrichment.
Accordingly, the developer learned about the unjustification of the enrichment on the day the claim was received, and from that day interest began to accrue on the entire amount of enrichment.
This situation is very typical and should not be taken as something out of the ordinary. Judicial practice has long been established, and, as a rule, there can be no other outcome of events in such situations.
The grounds for the occurrence of an obligation from unjust enrichment may be different:
• the requirement to return the contract previously executed upon termination;
• the requirement to return erroneously executed under the contract;
• demand for the return of the contract provided in case of non-conclusion;
• the requirement to return mistakenly transferred funds in the absence of any relationship between the parties, etc.
(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.29.2013 No. 11524/12 in the case No. A51-15943 / 2011, determination of the Supreme Court of the Russian Federation dated 26.01. 2010 No. 71-B09-15, etc.)
What was the intermediary left with who wished to make money by other people's labor? He was left with a writ of execution in the amount of five zeros from the customer and a debt for the work performed to subcontractors.
Of course, there are cases diametrically opposite! In them, between the customer and the developer, there is also no contract and / or acts are not signed, but the work is completed. A cunning customer wants to get both money and chairs. Then the contractor goes to court and tries to prove that he completed the work and received the money precisely for it, and not without reason. But this is a topic for a separate article.
So, the conclusions:
1. The presence of the contract protects both developers (payment for work) and customers (exclusive rights to the result of work).
2. Proceed to fulfill your obligations only by picking up an agreement signed by both parties.
3. All work must be surrendered and accepted only by acts.
4. Correspondence should be conducted only in a legally established manner (as indicated in the contract).
Posted by Ilya Lvov, Leading Lawyer, Zartsyn & Partners
We came across several exactly identical cases in a row. They were so identical that we felt a little creepy. “This is a sign from above! We are writing an article, ”we decided.
We are sure that one way or another you have come across a similar scheme.
So, let's put together our similar cases and make one generalized one.
The man found a programmer who, at a reasonable price, agreed to update his site.
All negotiations were conducted, as is now customary, in instant messengers or social networks.
We agreed on the general conditions, and the programmer, when meeting in a cafe, handed over to the customer two signed copies of the contract for review. The customer took them and, returning to the office, transferred a 100% advance payment to the developer for the first two months of work.
A month has passed, but there is no result of work. The second one passed - there is no result. And then after a thorough and nervous correspondence, everything in the same messenger, the customer received the answer from the series: "You see, the work is slow, because there are some objective difficulties, but everything will be done soon." Then the customer decides to conduct a small investigation of his own, or the programmer, tired of making excuses, blunders himself, saying, "the problem is with third-party programmers."
It turned out that a smart guy found subcontractors to fulfill the order (of course, for completely different money). Without paying them a single ruble, he demanded a result from them, which, rightly judged, they were in no hurry to give out completely.
As a result, the customer concluded a contract directly with the very subcontractors who did all the work for him efficiently and on time.
Yes, yes, all those cases that we mixed here contained this stage! Sooner or later, one way or another, the customer came to real performers. At this point, the problems of the one who initially concluded the contract with the customer were just beginning.
What is it called ?! And this is called, from the point of view of the law, unjust enrichment.
In this case, the intermediary who made the prepayment and did not perform the work properly was unreasonably enriched. Some part, of course, was completed, but it was not handed over and was not legally accepted under the acts.
As a result, a debt appeared to the intermediary before the customer, which the latter, naturally, was not going to repay. And the customer considers the actions of the intermediary to conclude a contract with a subcontractor illegal.
For reference: by virtue of Art. 1102 of the Civil Code of the Russian Federation, a person who, without the grounds established by the transaction, acquired property at the expense of another person, is obliged to return to the latter the property that has been acquired unjustifiably (unjust enrichment). This rule applies regardless of whether the unjust enrichment was the result of the behavior of the acquirer of the property, the victim himself, third parties or occurred against their will.
Suppose that the situation could not be resolved through negotiations and had to help the customer return the money through the court. There are fewer similarities: some intermediaries agreed to return the prepayment, some customers did not want to waste time on litigation.
We will not describe all the vicissitudes of the proceedings, we will focus on the main points that were the subject of the court’s investigation:
1. The absence of an agreement signed by both parties (the customer did not sign and did not give the intermediary a signed copy) generates non-contractual obligations, which entails the fact that the court will rely only on factual circumstances, that is, on the fact of the transfer of money and on the fact that the fact of the work is not documented.
2. All correspondence in instant messengers and social networks (even notarized) without a contractual relationship indicating this type of communication and acceptance of work does not have much evidentiary value for the court.
3. The absence of signed acts of acceptance of work indicates that the work has not been completed and not delivered.
As a result, the court satisfied the claim of the plaintiff-customer and recovered from the defendant-intermediary all the funds transferred by the customer.
In addition, the customer filed a claim before filing a lawsuit with the court. What for? Then, that on unjustifiably paid monetary funds interest is accrued in accordance with Art. 1107 of the Civil Code of the Russian Federation from the moment when the enriched person knew or should have known about the groundlessness of his enrichment.
Accordingly, the developer learned about the unjustification of the enrichment on the day the claim was received, and from that day interest began to accrue on the entire amount of enrichment.
This situation is very typical and should not be taken as something out of the ordinary. Judicial practice has long been established, and, as a rule, there can be no other outcome of events in such situations.
For reference: obligations from unjust enrichment arise in cases of acquisition or saving of property at the expense of another person, the absence of a legal basis for such savings (acquisition), the absence of circumstances provided for in Art. 1109 of the Civil Code of the Russian Federation.
The grounds for the occurrence of an obligation from unjust enrichment may be different:
• the requirement to return the contract previously executed upon termination;
• the requirement to return erroneously executed under the contract;
• demand for the return of the contract provided in case of non-conclusion;
• the requirement to return mistakenly transferred funds in the absence of any relationship between the parties, etc.
(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.29.2013 No. 11524/12 in the case No. A51-15943 / 2011, determination of the Supreme Court of the Russian Federation dated 26.01. 2010 No. 71-B09-15, etc.)
What was the intermediary left with who wished to make money by other people's labor? He was left with a writ of execution in the amount of five zeros from the customer and a debt for the work performed to subcontractors.
Of course, there are cases diametrically opposite! In them, between the customer and the developer, there is also no contract and / or acts are not signed, but the work is completed. A cunning customer wants to get both money and chairs. Then the contractor goes to court and tries to prove that he completed the work and received the money precisely for it, and not without reason. But this is a topic for a separate article.
So, the conclusions:
1. The presence of the contract protects both developers (payment for work) and customers (exclusive rights to the result of work).
2. Proceed to fulfill your obligations only by picking up an agreement signed by both parties.
3. All work must be surrendered and accepted only by acts.
4. Correspondence should be conducted only in a legally established manner (as indicated in the contract).
If you are not burning with the desire to leave several tens of thousands of nerve cells in court, and the bailiff has all your money, we recommend that you listen to these tips. Entering into a contractual relationship, the parties are required to comply with the requirements of the Russian legal field. Do not neglect them in favor of momentary convenience and simplicity.
Posted by Ilya Lvov, Leading Lawyer, Zartsyn & Partners