On 14 October 2026, the Presidium of the Supreme Court of the Russian Federation (the “Supreme Court”) approved Review of Case Law of the Supreme Court of the Russian Federation No. 3 (2026) (the “Review”)[1]. Of the 51 legal positions in the Review, the most significant for business are the conclusions of the Judicial Chamber for Economic Disputes of the Supreme Court on certain issues of indemnity for contractual losses, foreclosure on pledged property, and the qualification of a price increase by a collectively dominant entity after the conclusion of a contract. We discuss them in more detail below.
1. Indemnity for losses under Article 406.1 of the Civil Code: the creditor must prove the amount
The parties entered into a contract for the organisation of medical services and an agreement under which the respondent undertook to compensate the claimant for losses if the costs of medical services for insured persons exceeded the maximum permissible amounts calculated in accordance with the agreement. The first-instance court classified the losses claimed as damages and dismissed the claim on the grounds that the claimant had failed to prove all the conditions required to hold the respondent liable. The appellate court granted the claim, but the cassation court reinstated the first-instance decision. The Supreme Court confirmed that such an express agreement falls under Article 406.1 of the Civil Code rather than the rules on damages. However, a court may not accept a calculation of losses merely because the debtor has not challenged it: the creditor must prove that the circumstances specified in the agreement have occurred and that the method of determining the amount of losses is reasonable. For instance, where the amount of losses is determined by a mathematical formula, the creditor must disclose the input data for each of its components and provide supporting evidence. The case was remanded for a new hearing (Ruling No. 305-ES26-602, para. 13 of the Review).
Lidings comment: The Supreme Court’s position seeks to strike a balance between the interests of the creditor and the debtor where losses arise upon the occurrence of circumstances specified in the contract. On the one hand, the Supreme Court confirmed that an expressly worded agreement on indemnity for losses which is not linked to a breach of obligation cannot be recharacterised as a claim for damages. Accordingly, the creditor does not need to prove all the conditions required to hold the debtor liable for breach of obligation.
On the other hand, a contractual obligation to compensate losses does not in itself relieve the creditor of the burden of proving the grounds for and the amount of the claim. This means that the court will examine both the reasonableness of the agreed algorithm and the evidence supporting each value used in it, which protects the debtor against unfounded claims. When drafting such agreements, we recommend specifying in the loss calculation formulas the particular input data and their sources, which the creditor will be able to substantiate with documents. To avoid disputes, it is also advisable to supplement the contract with a procedure for the parties to exchange such data.
2. Foreclosure on part of the pledged property
To secure the buyer’s obligations under supply contracts, a pledgor that was not a party to the secured obligation pledged its vehicles and self-propelled machinery and also undertook the obligations of a surety. Citing the buyer’s failure to properly perform its obligations under the supply contracts, the pledgee filed a claim with the commercial (arbitrazh) court to foreclose on the pledged property. The courts at all three levels dismissed the claim on the grounds that, after the penalty had been reduced under Article 333 of the Civil Code, the total value of the pledged machinery was several times greater than the amount of the claim, and that a court may not on its own initiative select the items of pledged property to be foreclosed upon. The Supreme Court overturned the lower courts’ rulings and remanded the case for a new hearing. It noted that there were no grounds for applying the presumption that the breach was insignificant (Article 348(2) of the Civil Code), as the debt amounted to 23.5% of the value of the pledged property and the delay was 211 days. Moreover, where several items are pledged, the outstanding amount may be compared with the value of a single item, unless the law or the contract provides for foreclosure exclusively on all the items together[2]. When reducing a penalty, the court must itself select the items of pledged property sufficient to satisfy the claims it has upheld, and the pledgee is not required to amend its claims in advance (Ruling No. 305-ES25-14813, para. 12 of the Review).
Lidings comment: The possibility of foreclosing on some of the items constituting the pledged property is provided for in paragraph 69 of Resolution of the Plenum of the Supreme Court No. 23 dated 27 June 2023 and is not a fundamental novelty. However, the Supreme Court has clarified that where a court, in granting the defendant’s application under Article 333 of the Civil Code, reduces the amount of the claims, it must itself select the specific property to be foreclosed upon, even if the pledgee has not amended its claims. Both pledgors and pledgees should take this position into account, including when arguing in court which specific property should or should not be subject to foreclosure.
3. Price increase after conclusion of a contract by a collectively dominant entity
A seller of agricultural machinery, recognised as one of the collectively dominant entities on a regional market, increased the price of the goods after the sale and purchase contract had been signed, and the buyer was forced to sign a supplementary agreement to the contract. The antimonopoly authority found that the price increase was not driven by economic reasons and held the seller’s actions to be an abuse of dominant position. The first-instance and appellate courts upheld that decision, but the cassation court overturned it. The Supreme Court reinstated the rulings of the first-instance and appellate courts, agreeing that the seller’s actions constituted the imposition of unfavourable contractual terms (Clause 3 of Part 1 of Article 10 of the Competition Law[3]): instead of sharing the risk of changes in the manufacturer’s prices with the buyer, the seller shifted that risk entirely onto the buyer. The Supreme Court specifically noted that such a violation may be stopped not only before but also after the contract has been concluded, and that signing the contract without objections and performing it do not preclude this qualification. Ultimately, the Supreme Court formulated a general conclusion: the actions of a person dominant on a commodity market may be qualified as an abuse of market position if, on that person’s initiative, the contract includes unfair terms allowing it to extract unjustified (monopoly) benefits at the expense of counterparties for whom such terms, including the price terms, are onerous (Ruling No. 304-ES25-14345, para. 18 of the Review).
Lidings comment: The Supreme Court takes the view that an agreement on a price increase signed by the buyer does not legitimise an abuse. Neither the absence of a protocol of disagreements nor performance of the contract prevents the antimonopoly authority from qualifying such an increase as the imposition of unfavourable terms. We recommend that companies that may be recognised as collectively dominant entities (in particular, distributors of machinery and equipment on regional markets) review their mechanisms for changing the price after a contract has been concluded. It is advisable to link such mechanisms to objective indicators, allocate risks fairly between the parties and support each increase with documents evidencing its economic rationale.
[2] Paragraphs 56 and 69 of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 23 “On the Application by Courts of the Rules on the Pledge of Things” dated 27 June 2023.
[3] Federal Law No. 135-FZ “On the Protection of Competition” dated 26 July 2006 (the “Competition Law”).