SAC Presidium specifies rules governing return of lease payments on cancellation of a leasing agreement.

12.10.2011

Legal Update No. 276.

Goltsblat BLP advises of the publication of Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation (SAC) No. 17389/10 of 12 July 2011 (see the website www.arbitr.ru), confirming the lessee’s right to claim return of funds remitted to the lessor in the event of cancellation of the agreement and return of the leased item.

Previously, the SAC Presidium had already reached similar conclusions in Resolution No. 1729/10 of 18 May 2010, which stated that a leasing agreement envisaing transfer to the lessee of title to the leased item is a mixed agreement containing elements of a financial leasing agreement and a sale and purchase agreement. If such a leasing agreement is cancelled and the leased item is returned, the lessee is entitled to claim return by the lessor of the part of the leasing payments relating to the purchase payment, since the title to the leased item is not transferred.

Resolution No. 17389/10 adds detail to these conclusions as follows:

  • The right of the parties to the leasing agreement to determine the purchase payment terms at their own discretion is restricted: fulfilment of the leasing agreement should not entail unjust enrichment, i.e., acquisition by the lessor of sums placing it in a more beneficial position than would have resulted from fulfilment of the regulatory stipulates of the RF Civil Code relating to sale and purchase agreements.
  • If the leasing agreement envisages a purchase payment, this should comply with the real value of the leased item. To set a different purchase payment (for instance, a formal payment of 1000 RUB) constitutes abuse of rights on the part of the lessor and testifies to inclusion of the true purchase payment in the periodical lease payments.
  • A benchmark is set for the parties to agreements and courts for determining the purchase value: if the purchase value of the leased item is determined as its book value, this value should be calculated in the way fixed assets are booked on organisation balance sheets, as regulated by order of the Ministry of Finance of the Russian Federation of 30 March 2001 No. 26n “On approval of the Financial Accounting Regulations “Booking of fixed assets” PBU 6/01”, proceeding from depreciation of equipment by the straight-line method, to which the acceleration coefficient does not apply.
  • Wear and tear on assets during their possession and use by the lessee are not taken into account in determining the purchase payment (do not reduce it), this being justified by reference to subclause “в”. clause 2, article 1 of the UNIDROIT Convention on international financial leasing: periodical payments due under a leasing agreement are calculated, in particular, in consideration of depreciation of all or a substantial part of the value of the leased item.
  • The purchase payment may be close to zero on the condition that the service life of the leased item is almost equal to the term of the leasing agreement.

The SAC presidium also states in its Resolution No. 1729/10 that legally effective state arbitration court rulings on cases with similar actual circumstances, issued on the basis of interpretation of the rule of law differing from that contained in the given Resolution may be reviewed on the basis of newly discovered circumstances.

This new resolution will have a major effect on conclusion and fulfilment of leasing agreements, particularly when it comes to structuring leasing payments and establishing the procedure for agreement cancellation and return of the leased item to the lessor.

For additional information, please contact:

Alexander Smirnov,
Head of Commercial Practice, Goltsblat BLP,
T.: +7 (495) 287 44 44,
E: info@gblplaw.com

Denis Balakin
Senior Associate,
Commercial practice, Goltsblat BLP,
T.: +7 (495) 287 44 44,
E: info@gblplaw.com

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