Delimobil agreement. We abstract and divide

By Delimobil already gloriously trampled all and sundry. Particularly naive citizens even admired that the company offered to limit the liability to a fixed amount. So far there have not been any stories with showdowns under the new rules, what will be the result there is not quite clear. But we must understand that the contract has not gone away. So, it’s worth watching and reading it carefully, which, in fact, is what everyone says. Like, read the contract and then do not be surprised. OK. Let's read. Instructions for reading this: I will write in Russian, but in parentheses to give more precise wording. If you feel sorry for the brain - do not read the brackets :-)

To begin with, the lease agreement of the vehicle, which the Delimobil service has developed for its customers, is a contract of adherence, which is not only directly stated in the text of the contract, but also follows from its structure (the actual order of its conclusion ).
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Remember this important phrase "Treaty of Accession". This is a pretty strong trump card.

The specificity of the contract of adherence is that the client (the party to the contract ) has the right to demand termination or amendment of the contract if the contract of adherence contains crap ( burdensome ) for the acceding conditions, which they, based on common sense ( their rationally understood interests ), do not would accept if they were given a chance ( if she has the opportunity to participate in determining the terms of the contract ). We read clause 2 of Article 428 of the Civil Code of the Russian Federation, and we have a little bit of happiness in the future, because the court may well change or terminate a clearly unfavorable contract at the request of a loser ( weak counterparty ).

Moreover, as indicated in paragraph 9 of the Resolution of the Plenum of the Supreme Court of Arbitration of the Russian Federation No. 16 of March 14, 2014 “On freedom of contract and its limits”: “... because according to paragraph 4 of article 1 of the Civil Code of the Russian Federation no one has the right to take advantage of their unfair behavior, the weak side of the contract has the right to declare the inadmissibility of the use of unfair contractual terms on the basis of article 10 of the Civil Code of the Russian Federation or the nullity of such conditions under article 169 of the Civil Code of the Russian Federation. I mean, the client of the service, in case of disagreement with lawlessness ( applied to him by contractual sanctions ), can send to all the devils ( substantiate the nullity of these conditions of the contract with reference to the above judicial position ). I will not argue that the chances are great, but they are.

Let us turn to assess the legality of lawlessness (the controversial provisions of the contract ).

Let's start with the provisions of the "triple responsibility", around which the main howl is going: in and of itself, shake the penalty with the loser ( laying on the debtor ) plus losses does not contradict the law. Alas. Art. 394 of the Civil Code allows the creditor ( company ) to recover a penalty on top of all damages, if it is expressly provided for in the contract. So the law is not violated here.

Compensation of damages in full amount means that as a result of their reimbursement the creditor must remain with his (to be placed in the position in which he would be if the obligation was properly performed ). Therefore, the losses include both real damage and lost profits (art. 15 of the Civil Code).

BUT! However, for some fines you can and should fight, if that. Even if the court recognizes the penalty legal, it does not deprive you ( interested party ) to demand its reduction, referring to the rules of art. 333 of the Civil Code. This article is generally very useful for understanding all those who see draconian sanctions in their treaties, because it is about the proportionality of real damage and sanctions.

In this part, the court will need to take into account the explanations of the Plenum of the Supreme Court of the Russian Federation set out in Decree No. 7 of March 24, 2016 “On the application by courts of certain provisions of the Civil Code of the Russian Federation on liability for breach of obligations”, in particular, on signs of obvious disproportion of the penalty to the consequences violation of the obligation, and, in particular, that the penalty, as a type of liability, must be related to the violation.

Well, here we are starting to fight, because, for example, monetary compensation for the administration of responsibility (paragraph 5.28 of the contract) is an obvious disproportion. At a minimum, the loss of the company when receiving a fine from the client looks controversial, considering that money is withdrawn from the card automatically ( without acceptance ). The self proportional increase in compensation depending on the size of the write-off is also debatable, since the volume of administration should not strongly depend on the size of fines. Clients do not pay compensation for the conclusion of the contract, although the actions of the company's managers on the conclusion can also be called “administration”.

Right now it’s important that this does not turn out to be an advice ...

A separate song is the conditions for attracting to the assessment of damage only an expert, named the landlord. What does he count there, we all understand. Exactly about the same, the provisions of paragraph 2.8.8 of the contract that the assessment of the impact (the legality of the imposed administrative fines for violating traffic rules and the amount of damage ) is determined solely at the discretion of the leasing company. These provisions except hell ( discriminatory ) can not be called. A car user driver cannot be deprived of the rights and opportunities granted to him by law: the right to appeal ( contest ) administrative fines, participate in proving the amount of damage. Freedom of contract, referred to by the company, should not lead to the infringement of the legal capacity of the other party. Even more in Russian - if the provisions of the contract are contrary to the law, then they do not care. By law, you have the right to participate in everything that determines your future financial losses.

Then we have clause 5.7 of the contract, which is devoted to any other points for which you will have to answer in case of anything (the basis of the client’s responsibility ). In a normal life ( according to the general rules of compensation for harm ), the sufferer (the causer ) is released from his compensation if he proves that the harm was caused not through his fault.

Guilt and innocence are important concepts.

Innocence means that he normally handles the car ( with a normal degree of care and diligence, the user of the car took all measures to save the rented car ). However, clause 5.7 of the contract states that you fall on the headstock, even if you don’t have much to do with it (the client’s responsibility for damages and other harm to the car even “by chance”, even when the client’s actions during the rental session did not cause the onset of negative consequences ). For example, it turns out that if a car is accidentally stolen when you went to the store, then you will refund its cost. But after all, innocent responsibility for harm is provided by law (part 2 of article 1064), and not by a contract. This is another argument against the "accidental" responsibility of the client.

Generalize

Disclaimer In general, what a client of the “Delimobil” service can expect in case of a legal dispute with a company is not an easy question. The fact is that it is absolutely impossible to predict exactly the perspective of any legal dispute. But we still have the argument:

1. Obviously disproportionate, “draconian” sanctions, which under the contract were “imposed” on the consumer, he can challenge with reference to the specifics of the contract of accession. If you follow the rules of the Civil Code and the position of the Supreme Court of the Russian Federation on the contract of accession, it turns out that the consumer, as the weaker party to the contract, has the right to defend against unfair terms of the contract (for example, several types of fines for one violation, an apparent inconsistency between the amount of the fine and the amount of damage, caused by the company, etc.) talk about the inadmissibility of abuse of the right (Article 10 of the Civil Code of the Russian Federation) or about the invalidity of such contractual terms (Article 169 of the Civil Code of the Russian Federation). If the court finds that the consumer’s arguments are well-founded, the company will refuse to apply these provisions of the contract to the tenant.

2. Even if the court agrees with the legality of penalties, it does not deprive the interested party of the right to demand its reduction (according to the rules of Art. 333 of the Civil Code of the Russian Federation). For example, there is a so-called monetary compensation in the contract for the administration of liability (clause 5.38 of the contract). The rationale in favor of reducing this penalty (if not the complete exclusion) may be as follows: the company's losses in the receipt of a fine from the client seem controversial, given the direct debiting of money from his card. The company does not provide a positive or convenient service for a delinquent customer by writing off a fine. As a result, you can try to achieve a reduction or complete refusal to collect such fines from the customer service.

3. According to customers of the service, in the event of an accident, documents on damage assessment conducted on the initiative of “Delimobil” are not issued to them. Here, the company obviously relies on clause 2.8.8 of the contract on bringing damage to the assessment of only an expert, named the lessor, that the assessment of the legality of the imposed administrative fines for violating traffic rules and the amount of damage is determined solely at the discretion of the lessor company. Here again, the customer of the service may put forward his rights as an affiliated party against the company and refer to the inadmissibility of abuse of the right.

4. If to challenge clause 5.7 of the contract in the part of “objective imputation”, i.e. if all risks of theft and damage of a rented car are imposed on the client, the court will quite possibly take the side of the user and refuse the company to recover this damage and the corresponding fines from the tenant.

(C) Alina Tukhvatullina. Kirill Gotovtsev