Dispute of high achievements – Picture of the day – Kommersant

The question of what is included in the contract for the provision of legal and consulting services has been referred to the Supreme Court of the Russian Federation (SC). The economic board of the court must decide whether the customer can demand from consultants some specific result for himself in the future and refuse to pay if it is not achieved. Lawyers interviewed by Kommersant have different opinions on this matter. They consider the case itself to be precedent, noting that its outcome may affect the terms of contracts with clients.

The SC will look into what constitutes improper provision of advisory services. In November 2017, City Building Company LLC hired ConsultYurist LLC to provide a range of legal services. They included supporting the process of participating in the auction, preparing and submitting an application and other documents, as well as subsequent assistance with the approval and registration of a lease agreement for premises in the center of Moscow, which belongs to cultural heritage. The cost of services was 11.1 million rubles. with a phased payment. At the same time, the contract stated that the contractor “is not responsible for the actions of state bodies, but is obliged to make every effort and his experience to ensure that a lease agreement is concluded with the customer.”

City Building Company won the tender and in September 2018 signed a lease agreement with the Agency for the Management and Use of Historical and Cultural Monuments. But Rosreestr refused to register it, referring to the discrepancy between the data on the area of ​​​​the premises indicated in the state real estate register and the BTI passport, and the lack of proper information about the agreement of the lease with the owner of the object. The Moscow Arbitration Court recognized this refusal as legal, and subsequently the agency and the tenant terminated the lease.

After that, “ConsultYurist” and “City Building Company” had a dispute over the services rendered, the act of acceptance of which was never signed. “ConsultYurist” went to court to recover 7.4 million rubles from the customer, claiming incomplete payment.

The firm indicated that it had fulfilled all obligations, and that it was not her fault in terminating the lease agreement. City Building Company filed a counterclaim to terminate the service agreement and recover 11.1 million rubles from the contractor. unjust enrichment, stating that the entire amount was paid. The customer referred to the improper provision of consulting services, which led to “failure to achieve the result stipulated by the contract.”

In March 2022, the Moscow Arbitration Court satisfied the lawsuit of Konsaltyurist, and rejected the counterclaim. The court noted that the contract for the provision of services implies the performance of certain actions by the performer, therefore, the failure to achieve the result “cannot serve as a basis for recognizing the services as not rendered, and payment for services is not made dependent on the registration of the lease agreement,” moreover, no comments were received from the customer from the contractor . The appeal and cassation recognized these conclusions as correct.

City Building Company LLC complained to the Supreme Court. The key argument of the applicant was that the provisions of the Civil Code on the contract, and not on paid services, should apply to the contract. If the services involve a process, then in the contract for the customer, first of all, it is “achieving a certain material result” that matters, here the goal was the signing and state registration of the lease agreement.

Since this goal is not achieved, “the contract cannot be considered properly executed.”

The applicant insists that Konsaltyurist is a “professional in the field of legal support” who was supposed to “assess the risks of failure to achieve the purpose of the contract and warn the customer in a timely manner”, but, having received incomplete documentation, did not inform the customer about the possible consequences. In addition, the parties have a dispute about the amount of money already paid. Based on these arguments, the case was referred to the Economic Collegium of the Armed Forces, the hearing was scheduled for March 28.

“The dispute is already interesting because it discusses the quality of legal services and the legal nature of agreements with legal consultants,” says Anton Kravchenko, Arbitrazh.ru lawyer. The position of the Supreme Court on whether the rules of the contract on responsibility for achieving the result are applied to the service contract will be precedent, emphasizes Orchards partner Alexei Stankevich.

The opinions of lawyers on the possibility of applying the rules on the contract to the contract for the provision of consulting services differ. “Despite the fact that in most cases legal activity is an obligation to make the maximum effort, sometimes it can also be qualified as a contract (for example, in the case of preparing a large legal opinion) with all the ensuing consequences,” believes Anton Kravchenko. He considers the customer’s opinion that the legal consultant is obliged to analyze the submitted documents and identify shortcomings that do not allow the client to achieve the desired result “not without meaning”.

BGP Litigation lawyer Victoria Bogacheva also admits that the courts approached the resolution of the case too formally, because the customer needed a certain result from the contractor, and not the process of providing the service.

Elena Gladysheva, managing partner of RI-consulting, objects: “The text of the disputed contract does not contain a direct indication of the mandatory result of the work. On the contrary, according to its terms, the performer disclaims responsibility for the actions of state bodies.” In addition, a number of services in the early stages were performed in any case, and it is “inappropriate and unfair” to talk about the absence of grounds for their payment, she believes. Ms. Gladysheva hopes that the Supreme Court will not give too broad an interpretation of legal services and will not allow customers to “take a privileged place” in relations with consultants.

Victoria Bogacheva notes that the final position of the Supreme Court may affect the terms of contracts with consultants and force the parties to choose wording more carefully in order to avoid double interpretation. If the Supreme Court supports the customer’s arguments, adds Mr. Stankevich, the consultants may prefer “to explicitly stipulate in the contract of legal services that the rules of the contract on liability for failure to achieve results are not applied to them.”

Ekaterina Volkova, Anna Zanina