if a company providing any services violates the conditions prescribed by it in the contract, does the other party have the right to sue it?
or is it generally not punishable?
It all depends on the contract.
You can either terminate it in this case, or sue - you need to look at the entire contract, there is little specificity in that
You can sue.
Post here the contract, we will estimate.
I do not have it electronically
There is absolutely no difference what is written in the contract.
It may be written that the claim for rights from this contract does not apply.
In fact, it will still be possible to file a lawsuit.
if there is a director’s signature and seal, then file a lawsuit.
If you, of course, need it.!
Enough signature on the contract. Printing is optional.
By the way, if the company violates the terms of the contract, it makes sense to convey to them the intention not to put up with this situation: maybe it will be possible to quickly solve the problem. If you have already tried and failed, then file a lawsuit.
By the way, if the company violates the terms of the contract, it makes sense to convey to them the intention not to put up with this situation: maybe it will be possible to quickly solve the problem.
Well, at least on what topic is the contract? What were you thrown at? What did you fail?
kidalovo in terms of execution.
the contract, however, spells out the payment of a penalty in percentage terms for each day.
But what if you register a penalty, then you can delay as much as you want?
Section 393. Obligation of the Debtor to Compensate for Losses
1. The debtor shall be obliged to compensate the creditor for losses caused by non-fulfillment or improper fulfillment of the obligation.
2. Losses are determined in accordance with the rules provided for in Article 15 of this Code.
3. Unless otherwise provided by law, other legal acts or an agreement, when determining losses, the prices prevailing at the place where the obligation was to be fulfilled shall be taken into account on the day of voluntary satisfaction by the debtor of the creditor's claim, and if the claim was not voluntarily satisfied, - on the day the lawsuit is filed. Based on the circumstances, the court may satisfy the claim for damages, taking into account the prices existing on the day the decision is made.
4. When determining the lost profit, the measures taken by the creditor to receive it and the preparations made for this purpose shall be taken into account.
Section 394. Losses and Forfeit
1. If a penalty is established for non-fulfillment or improper performance of an obligation, then losses shall be compensated in the part not covered by the penalty.
The law or the contract may provide for cases: when only a penalty is allowed, but not losses, when losses can be recovered in full in excess of the penalty, when, at the creditor's choice, either a penalty or losses can be recovered.
2. In cases where limited liability has been established for non-performance or improper performance of the obligation (Article 400, losses to be compensated in the part not covered by the penalty, either in excess of it or in its place, may be recovered to the extent established by such a restriction.
And here's another one.
Article 396. Responsibility and performance of an obligation in kind
1. Payment of the penalty and damages in case of improper performance of the obligation shall not exempt the debtor from the performance of the obligation in kind, unless otherwise provided by law or contract.
2. Compensation for losses in the event of failure to fulfill an obligation and payment of a penalty for its failure to exempt the debtor from the performance of the obligation in kind, unless otherwise provided by law or contract.
3. Refusal of the creditor to accept the performance, which, due to the delay, has lost interest for him (clause 2 of Article 405 as well as the payment of the penalty established as compensation) (Article 409 shall release the debtor from the performance of the obligation in kind.
Article 397. Fulfillment of an obligation at the expense of the debtor
In the event the debtor does not fulfill its obligation to manufacture and transfer the thing into ownership, economic management or operational management, or to transfer the thing to the creditor, or to perform certain work for him or render him a service, the creditor has the right to entrust the performance of the obligation to third parties at a reasonable price or fulfill it on their own, unless otherwise provided by law, other legal acts, contract or substance of the obligation, and require the debtor to recover the necessary expenses strokes and other damages.
Section 398. Consequences of Failure to Transfer an Individual-Specific Thing
In case of non-fulfillment of the obligation to transfer an individually defined thing into ownership, in economic management, in operational management or in reimbursable use, the creditor has the right to demand that this thing be taken from the debtor and transferred to the creditor on the conditions provided for by the obligation. This right does not apply if the thing has already been transferred to a third party having the right of ownership, economic management or operational management. If the thing has not yet been transferred, the advantage is given to one of the creditors in whose favor the obligation arose earlier, and if it is impossible to establish, the one who has sued before.
Instead of demanding to transfer to him the thing that is the subject of the obligation, the creditor has the right to demand compensation for losses.
If you tell the essence of the contract, I can explain more specifically.
oh that language of laws
usually (at least in my practice) on reimbursement of delays stupidly hammer
Also pay attention to whether there is a mandatory procedure for pre-trial settlement of the dispute.
Resolving an issue for an individual if a party does not fulfill an obligation
If a person, as an individual, ordered a service, for which he paid in full or in part money, and the contractor is a law firm, does not fulfill his promises (verbal agreement), then you can sue. The fact of the absence of an agreement does not in any way limit the person’s right to return his money through the court, but for this there must be such documents as a warrant or receipt for payment for the service. At the same time, it should be noted that even without them, the basis for filing a lawsuit without a contract may be art. 1102 of the Civil Code of the Russian Federation, giving the concept of "unjustified enrichment."
|According to the provisions of Article 1102 of the Civil Code, an individual who has acquired or saved property (acquirer) at the expense of another person (victim) is obliged to return unreasonably saved or acquired property.|
The only thing you need to consider is that, according to the provision of Art. 1109 the following shall not be refunded as “unjust enrichment”:
- Cash provided in fulfillment of a non-existent obligation.
- Salaries, pensions, benefits and equivalent payments, in the absence of dishonesty.
- Property that was transferred in fulfillment of a specific obligation, but after the expiration of the limitation period.
- Property transferred in fulfillment of a specific obligation, but only before the due date.
If the company is active, then the person filed a lawsuit in a court of general jurisdiction with a request to consider the return of his funds on the basis of unjustified enrichment of a third party at his expense. The only condition, before suing without having a contract, is best to write a letter of complaint to the contractor demanding that the money be returned and the threat of suing if it is not fulfilled.
If deadlines are violated
When hiring a contractor, an individual is often faced with a gross violation of the terms of the work. In this case, you can sue on the basis of Art. 28 of the Law "On Protection of Consumer Rights", according to which the consumer in violation of the term of the work performed has the right:
- Assign a new term to the contractor.
- Demand a reduction in the price of the work performed.
- Refuse to perform work by the selected contractor.
- To entrust the execution of work to another person.
- Demand compensation for losses incurred, including through the court (file a lawsuit).
It must be understood that, despite the absence of an agreement between the customer and the contractor, the court also takes into account indirect documents confirming the commercial relationship between the two persons. Such official documents may be receipts, letters on paper and electronic media, including notifications by E-mail, receipts. In addition, written testimonies of existing witnesses (on the transfer of money, negotiations, an agreement on the price of work, deadlines, and so on) can appear in court as evidence.
When answering the question of how to properly sue without a contract, it should be noted that at the first stage you should try to resolve the issue peacefully, since any court is always associated with monetary costs, including the mandatory state duty fee. When negotiating with a contractor who violates his obligations, it should be emphasized that the court has the right to consider the statement of claim even without a contract, since it is enough to have just an order form, a receipt of a warrant or other document.
Legal proceedings between legal entities without an agreement concluded between them
Often, representatives of firms that have collaborated with each other for a long time do not conclude contracts, which sometimes leads to certain difficulties. Indeed, if a dispute arises and one of the parties does not want to fulfill its obligations, it will be difficult to hold it accountable. Fortunately, even if there is no concluded cooperation agreement between legal entities with the prescribed obligations and rights, you can sue. The main thing is that the plaintiff should be able to produce documents that indirectly certify commercial relations between the parties, which include:
- - Acts of unloading goods.
- - Acts of reception / transmission.
- - Overhead.
- - Act of reconciliation.
- - Accounts.
If we talk about legal compensation for the supply of goods, the court, when calculating the total amount in the absence of a contract, usually considers each delivery as a separate purchase / sale contract with a fixed value.
How to sue without a contract?
If a person does not have a contract, then it is still possible to sue, only for this, first of all, you should consult with an experienced lawyer or lawyer who can understand all the nuances of the case. Further, it is imperative to collect all the available database of documents confirming the relationship with the violator of contractual obligations. We should not forget about the witnesses, whose testimony the court can also take into account when passing the verdict.
Cases related to the violation of contractual obligations between individuals, as well as between an individual and a legal entity, are examined by the Arbitration Court, and the statement of claim should be filed at the place of registration of the defendant. The statement must accurately reflect the situation and all circumstances of the case, be sure to refer to the paragraphs and articles of the violated laws, regulations and decrees. The claim must be accompanied by a copy of the receipt of payment of the state duty, a copy of the civil passport (registration of legal entity), as well as all other documents by which the plaintiff can be justified.
Based on the foregoing, we can conclude that the most correct thing when ordering any work or service is necessarily to conclude a contract or contract. This will protect not only the customer, but also the performer as much as possible, as performers are also often the injured party. For example, when the customer, in addition to the stipulated requirements, begins to present new ones without financial compensation, which is especially common in the construction industry.
However, even if the parties do not have an officially concluded agreement on the implementation of the service (or delivery of goods), then you can still sue and win the case. The main thing is to collect all evidence of the existence of a commercial relationship with the violator, and then competently draw up a statement of claim, be sure to attach certified copies of existing documents, including those containing extracts and notarized emails.
When to file
There are many reasons to sue an employer. The most important can be considered:
- Violation of the terms of the employment contract,
- Violation of labor standards
- Refusal to pay statutory compensation,
- Creating hazardous working conditions,
- Refusal to comply with the regulations of the inspectorate responsible for observing working conditions,
- Illegal dismissal
- Unreasonable fines,
- Violation of the norms of reductions and other similar actions,
- Payroll retention.
How to file a lawsuit
Drafting a lawsuit against the employer in court is a very simple task, but it is very important. The lawsuit has a strict form, it should be drawn up in compliance with the requirements:
- Heading. They enter into it:
- Name of court
- Court address
- Name of plaintiff (applicant),
- Place of registration of the plaintiff
- Name and details of the defendant (employer),
- Registration address of the defendant.
- Information part It is prescribed in it:
- Information about the concluded contract with the employer,
- Description of the employee’s labor activity,
- Description of the offense or conflict that caused the lawsuit to be brought to court,
- The employer's reaction to the problem
- A list of your attempts to resolve the issue peacefully,
- List of claims
- Justification of the requirements.
- Conclusion It is prescribed:
- Additional information (e.g. witness data),
- The list of papers attached to the claim,
- Signature of plaintiff and date of filing.
What documents to attach
In order for the court to consider your appeal, he will need to provide documents. Their set varies from case to case and includes:
- Statement of claim modeled
- A copy of the employment contract
- A copy of the applicant’s passport,
- A copy of the dismissal order (if it concerns the illegal termination of employment),
- The conclusion of the Labor Inspectorate and the prosecutor's office (if they were already involved in the case),
- All your statements and complaints previously submitted to the employer, as well as an answer to them,
- Examination results (if it comes to causing damage),
- Written testimony of witnesses.
And other papers. As you can see, the documents for filing a lawsuit can be very different. Concerning Before submitting an application, it is better to clarify the list of attached documents in the nearest court, or contact a lawyer or lawyer.
Which court to apply to
In order for the claim to be considered, it must be submitted to the correct court. Consider your application will be able to:
- Magistrate's Court. He usually resolves minor disputes with the employer,
- Court of Arbitration. This court is already considering more serious cases - violation of workers' rights, working conditions. This court is also considering compensation claims. with a claim price of more than 50,000 rubles.
In this case, the plaintiff has the opportunity to choose the branch of the court: a lawsuit can be filed:
- At the place of registration of the employee,
- At the place of registration of the employer,
- At the place of conclusion of the employment contract.
Many citizens are interested in the question "How much will it cost to go to court with a complaint against an employer?" The answer to this question is given by two documents - Article 333.36 of the Tax Code of the Russian Federation, as well as the Resolution of the Plenum of the Armed Forces of March 17, 2004 No. 2. According to these documents, the duty is not paid at all, since claims against the employer either relate to compensations and penalties, or arise from violations of labor standards.
Criminal Lawyer. Experience in this area since 2006.