Commentary by Yulia Karpova in the practice section at PRAVO.RU
The guarantor is obliged to reimburse the creditor's legal costs incurred in collecting the debt from the principal debtor.
This conclusion is provided by the Civil Chamber of the Supreme Court when considering the following case:
- An individual entrepreneur agreed to provide legal services to the Company, and the general director of the Company acted as the guarantor under this agreement. Two years later, the Company went bankrupt, but the individual entrepreneur managed to sue the remaining debt along with legal costs in arbitration court (case No. A40-102034/2019).
- Due to the insolvency of the Company, the individual entrepreneur demanded the debt payment from the guarantor.
- The district court refused to satisfy the claim.
- The appeal and cassation court overturned the district court's decision, ruling to recover only the debt and the fine in favor of the individual entrepreneur, and also refused to recover legal costs, considering that the entrepreneur incurred them as a defendant in the arbitration case, and not as a service provider under a contract for the provision of legal services.
The Supreme Court of the Russian Federation, relying on the principle of joint liability, ruled differently in terms of recovery of legal costs: by virtue of paragraph 2 of Article 363 of the Civil Code, the guarantor is obliged to reimburse the creditor for expenses incurred in collecting funds from the main debtor, regardless of which court the case was heard in. The guarantor must compensate for legal costs if the main debtor has not done so.
Infralex partner Yulia Karpova positively assessed the Supreme Court's readiness to protect the creditor's right to compensation for legal costs.
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