The consequences of the termination of the lease agreement for failure and / or delay in performance of the lessee obligation to pay the lease payments

26.06.2013

The consequences of the termination of the lease agreement for failure and / or delay in performance of the lessee obligation to pay the lease payments

According to the Superior Arbitration Court(SAC) Resolution number 17389/10 in the case of termination of the financial leasing contract at the initiative of the lessor and the withdrawal of their leased by the lessor's obligation ceased transmission equipment lessee of the property. Therefore, the reason for holding the part of the lessor funds that were actually paid by the lessee to repay the purchase price of the leased asset at the lease payments are not available. A similar view is contained in the decision of Superior Arbitration Court on the case number A40-62197/11-76-384 Decree of the Presidium of the Russian Federation № 3318/11 of 25.07.2011 stipulates that the lessor is not entitled to require the lessee, expired making lease payments, the return of the leased asset, if prior to the notice of refusal to perform the contract last paid all payments due under the contract. Thus, the Supreme Arbitration Court of the Russian Federation has decided that as a result of late payment the lessor can not get more benefits than those which he would have received if the lessee is perfectly fulfill contractual obligations.

Lease payments constitute payment for the use of the leased asset under applicable law. Advance payments do not constitute payment for the use of the leased property and shall be returned upon termination of the lease agreement. This opinion is shared by SAC in its decision on the case number and A40-62197/11-76-384 Federal Arbitration Court of Volga region in the Resolution number A57-12876/2010. It is also stated that the redemption value contained in the lease payments to be returned in the same lessee. Calculation of the share purchase price is based on the useful life and the depreciation of the property transferred on the basis of a finance lease.

On the other hand Resolution of the Federal District of the Moscow 11.10.2012 A40-62197/11-76-384 the case number, which is in a similar situation took the side of the lessor, which suggests that the court opinions on this issue is ambiguous .

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