Case of the year according to lawyers: customer and developer
Once again, I want to raise the topic of customer relations and software developers. Both those and others do not get tired of stepping on the same rake, making out (or not making out) their mutual relations when developing and / or bringing websites and applications to mind.
We ran into several identical cases in a row. They were so identical that we got a little creepy. “This is a sign from above! We are writing an article, ”we decided.
We are sure 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 agreed to update his site at a reasonable price.
All negotiations were conducted, as is customary today, in messengers or social networks.
They agreed on the general conditions, and the programmer, when meeting in a cafe, gave the customer two signed copies of the contract for review. The customer took them and, returning to the office, transferred to the developer one hundred percent advance for the first two months of work.
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A month has passed, but there is no result of the work. Passed the second - there is still no result. And then after a thorough and nervous correspondence, the customer received the answer from the series in the same messenger: “You see, the work is going slowly, as 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 who is tired of trying to defend himself is saying the problem “in third-party programmers”.
It turned out that the smart guy found subcontractors to fulfill the order (of course, for completely different money). Without paying them a ruble, I demanded from them the result, which they, rightly judging, did not rush to give out completely.
As a result, the customer entered into an agreement directly with the very subcontractors who did all the work to him accurately and on time.
Yes, yes, all those cases that we mixed here contained this stage! Sooner or later, one way or another, the customer went to real performers. At this moment, the problems of the person who initially entered into an agreement with the customer, just started.
What is it called ?! And this is called, from the point of view of the law, unjust enrichment.
In this case, the mediator unjustifiably enriched himself, who took the prepayment and did not do the job properly. Some part, of course, was carried out, but it was not handed over and was not legally accepted according to acts.
As a result, the intermediary had a debt to the customer, which the latter, naturally, was not going to give. And the customer considers the actions of the intermediary to conclude a contract with a subcontractor illegal.
Suppose the situation could not be resolved through negotiations and the customer had to help the customer return the money through the courts. There are fewer similarities here: 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 research:
1. The absence of a contract signed by both parties (the customer did not sign and did not give the intermediary a signed copy) generates non-contractual obligations, which entails that the court will rely only on factual circumstances, that is, on the fact of the transfer of money and on that that the fact of the work is not documented.
2. All correspondence in messengers and social networks (even notarized) without formal contractual relations indicating such kind 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 was not completed and not handed over.
As a result, the court satisfied the plaintiff’s request and charged all the funds transferred by the customer from the respondent mediator.
In addition, before filing a lawsuit in court, the customer filed a complaint. What for? Then, that unreasonably paid cash interest is charged in accordance with Art. 1107 of the Civil Code of the Russian Federation from the moment when an enriched person knew or should have known about the groundlessness of his enrichment.
Accordingly, the developer found out about the unjustness of the enrichment on the day of receipt of the claim, 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 arising from unjust enrichment may be different:
• the requirement to return the previously executed upon termination of the contract;
• the requirement to return the wrongly executed under the contract;
• Requirement for the return of the agreement provided when the contract is not concluded;
• the requirement to return the erroneously transferred money in the absence of any relations between the parties, etc.
(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 11524/12 dated January 29, 2013 on case No. 51-15943 / 2011, Definition of the Supreme Court of the Russian Federation No. 71-B09-15 dated January 26, 2010, etc.)
What is left with the mediator, who wished to earn someone else's work? He stayed with an order of execution of the sum with five zeros from the customer and a debt for the work done to the subcontractors.
Of course, there are cases diametrically opposed! There is also no contract between the customer and the developer, and / or acts are not signed, but the work is done. A cunning customer wants to get both money and chairs. Then the performer goes to court and tries to prove that he did the work and received the money for it, and not without a reason at all. But this is a topic for a separate article.
So, the conclusions:
1. The existence of a contract protects both developers (payment for work) and customers (exclusive rights to the result of work).
2. Proceed to fulfill your obligations only by taking into account the contract signed by both parties.
3. All work must be surrendered and taken only on acts.
4. Correspondence should be conducted only in a legally established manner (as specified in the contract).
Author: Leading Lawyer "Zartsyna and Partners" Ilya Lvov
We ran into several identical cases in a row. They were so identical that we got a little creepy. “This is a sign from above! We are writing an article, ”we decided.
We are sure 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 agreed to update his site at a reasonable price.
All negotiations were conducted, as is customary today, in messengers or social networks.
They agreed on the general conditions, and the programmer, when meeting in a cafe, gave the customer two signed copies of the contract for review. The customer took them and, returning to the office, transferred to the developer one hundred percent advance for the first two months of work.
')
A month has passed, but there is no result of the work. Passed the second - there is still no result. And then after a thorough and nervous correspondence, the customer received the answer from the series in the same messenger: “You see, the work is going slowly, as 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 who is tired of trying to defend himself is saying the problem “in third-party programmers”.
It turned out that the smart guy found subcontractors to fulfill the order (of course, for completely different money). Without paying them a ruble, I demanded from them the result, which they, rightly judging, did not rush to give out completely.
As a result, the customer entered into an agreement directly with the very subcontractors who did all the work to him accurately and on time.
Yes, yes, all those cases that we mixed here contained this stage! Sooner or later, one way or another, the customer went to real performers. At this moment, the problems of the person who initially entered into an agreement with the customer, just started.
What is it called ?! And this is called, from the point of view of the law, unjust enrichment.
In this case, the mediator unjustifiably enriched himself, who took the prepayment and did not do the job properly. Some part, of course, was carried out, but it was not handed over and was not legally accepted according to acts.
As a result, the intermediary had a debt to the customer, which the latter, naturally, was not going to give. 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 has acquired property at the expense of another person without grounds established by a transaction, is obliged to return to the latter the unjustly acquired property (unjust enrichment). This rule applies regardless of whether the unjust enrichment resulted from the behavior of the acquirer of the property, the victim himself, third parties, or occurred against their will.
Suppose the situation could not be resolved through negotiations and the customer had to help the customer return the money through the courts. There are fewer similarities here: 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 research:
1. The absence of a contract signed by both parties (the customer did not sign and did not give the intermediary a signed copy) generates non-contractual obligations, which entails that the court will rely only on factual circumstances, that is, on the fact of the transfer of money and on that that the fact of the work is not documented.
2. All correspondence in messengers and social networks (even notarized) without formal contractual relations indicating such kind 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 was not completed and not handed over.
As a result, the court satisfied the plaintiff’s request and charged all the funds transferred by the customer from the respondent mediator.
In addition, before filing a lawsuit in court, the customer filed a complaint. What for? Then, that unreasonably paid cash interest is charged in accordance with Art. 1107 of the Civil Code of the Russian Federation from the moment when an enriched person knew or should have known about the groundlessness of his enrichment.
Accordingly, the developer found out about the unjustness of the enrichment on the day of receipt of the claim, 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 by art. 1109 of the Civil Code.
The grounds for arising from unjust enrichment may be different:
• the requirement to return the previously executed upon termination of the contract;
• the requirement to return the wrongly executed under the contract;
• Requirement for the return of the agreement provided when the contract is not concluded;
• the requirement to return the erroneously transferred money in the absence of any relations between the parties, etc.
(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 11524/12 dated January 29, 2013 on case No. 51-15943 / 2011, Definition of the Supreme Court of the Russian Federation No. 71-B09-15 dated January 26, 2010, etc.)
What is left with the mediator, who wished to earn someone else's work? He stayed with an order of execution of the sum with five zeros from the customer and a debt for the work done to the subcontractors.
Of course, there are cases diametrically opposed! There is also no contract between the customer and the developer, and / or acts are not signed, but the work is done. A cunning customer wants to get both money and chairs. Then the performer goes to court and tries to prove that he did the work and received the money for it, and not without a reason at all. But this is a topic for a separate article.
So, the conclusions:
1. The existence of a contract protects both developers (payment for work) and customers (exclusive rights to the result of work).
2. Proceed to fulfill your obligations only by taking into account the contract signed by both parties.
3. All work must be surrendered and taken only on acts.
4. Correspondence should be conducted only in a legally established manner (as specified in the contract).
If you are not burning with the desire to leave 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 obliged to comply with the requirements of the Russian legal field. Do not neglect them in favor of momentary convenience and simplicity.
Author: Leading Lawyer "Zartsyna and Partners" Ilya Lvov
Source: https://habr.com/ru/post/297630/
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