When it is possible to keep the previous terms of the contract, even if the counterparty has the right to change them, and what the court should pay attention to, read our article.
If the counterparty made amendments retroactively (and if this is not provided for in the contract itself), for example, changed the rates of past payments without a retroactive (effective for past events) clause in the contract, then such a change will be invalid. We also recommend relying on the position of the Supreme Court below. If the counterparty is already in arrears, and you have not expressly indicated the release from obligations, this clause will not nullify its obligations.
- Decision of the Court of Arbitration of the North-West District of 13.11.2023 in case No. A42-10094/2022
- Decision of the Supreme Arbitration Court of the East Siberian Federal District of 31.03.2022 in case No. A19-22745/2020
- Decision of the Supreme Arbitration Court of 02.09.2021 in case No. A40-339710/2019
- Decision of the Ninth AAC of 10.08.2023 in case No. A40-228152/2022
- Decision of the AAC of the WCA of 13.03.2023 in case No. A75-7412/2022
- The Ninth AAC of 15.09.2023 in case No. A40-287630/2022
- Tenth AAC of 17.05.2022 in case No. A41-74622/2021
Please note that if the terms of the contract are changed unilaterally and the party is not duly notified, there is a high probability that the court will point to the invalidity of such provisions. For example, when the buyer has overpaid, systematically paying for an inflated invoice at the new price, without proper notification. We recommend to record all discrepancies, as in accordance with the contract, as well as inconsistencies, such as the inventory of attachments.
- Decision of the Arbitration Court of Moscow from 29.12.2021 in case No. A41-23954/2021
- Decision of the Arbitration Court of Moscow from 11.10.2022 in case No. A40-263095/2021
If the terms of unilateral change of conditions in the contract are not unambiguously spelled out, the court is not likely to stand on the side that changes the conditions. Thus, in the loan agreement, the bank did not prescribe the exclusive possibility and did not clearly indicate its right to change the terms unilaterally, being a strong party to the contractual relations. The court sided with the organization. Also, agreeing on a new price and without the procedure provided for in the contract, the courts recognize the old rules of calculation.
- Decision of the Arbitration Court of the East-Eastern Federal District of 11.07.2023 in case No. A28-8430/2022
- Decision of the Arbitration Court of PO of 26.06.2023 in case No. A12-31428/2022