Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС18-12143, 18 December 2018If, in violation of a preliminary contract, one of parties evades the conclusion of a main contract, can the other party claim damages in the amount of its positive interest? And if it can, is it entitled to use an abstract method of determining the amount of damages? Almost a century and a half ago, the Civil Cassation Department of the Governing Senate essentially gave positive answers to both questions. Last year, the Supreme Court of the Russian Federation left them without explanation and instructed lower instances to sort out the issues of the application of substantive law. A positive answer to these questions is based on pragmatic arguments: there is no reason to force the aggrieved party to seek coercion to conclude the main contract for the purpose of subsequent recovery of contractual damages, thereby complicating the creditor’s protection of its violated interests and increasing the infringing counterparty’s chance to come off clear. A negative answer is based on a number of dogmatic arguments: there is the need to differentiate the regulation of preliminary and main contracts (since these are two different institutions) through differences in the consequences of their violation, which should be determined according to views of the parties on the role of both transactions in the development of their economic relations.
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