The contract of supply. How to protect your company from the arbitrariness of Power and landlords

The contract of supply. How to protect your company from the arbitrariness of Power and landlords


The company runs the risk of using energy without registration contract

How profitable tenant relationship on the issue of energy supply

What if the power supply company refuses to enter into a contract.

In connection with this fall in a difficult situation of the company, the network that do not have direct access to the network and sales (that is connected through the equipment of other subscribers), as well as the tenants of the property. Energy suppliers are often denied them in direct contracts.

It is necessary to look for workarounds, but not all of them are completely safe.

What happens if the agreement does not enter into

Faced with the obstacles in the contract, some traders use electricity spur of the moment, that is, without any registration of any relationship. Like, let them prove that we use energy. It is necessary to try to convince the head of that really such a position — a self-deception.

First of all, the courts believe that the released energy must be paid regardless of whether dogovora.02.05 number A39-2023 / 2004-108 / 17). But most importantly, in doing so, the company runs the risk of total shutdown of the power supply company, and in the worst scenario — and with criminal charges of theft of energy in the leadership.

Sometimes companies give a defense argument that we did not have the receiving equipment, and thus the physical ability to consume energy. However, it is hardly much to hope for a beautiful logical trick, if in fact the company consumes energy.

CASE STUDY. The company enjoyed a thermal energy, not formalize relations with energy supplying organization. When the heat supply organization filed a claim, the customer has declared unproven energy consumption. However, the judge did not listen to this argument, finding that, according to the certificate examination, which implies that the disputed premises are thermal unit and the pipe was also ascertained the fact of heating premises (Decree of the Federal Arbitration Court of the Volga-Vyatka region from 13.11.02 № A31 -1130 / 10).

How to formalize relations, if not their networks

Due to the position of arbitration courts a legitimate way out is possible. An analysis of arbitration practice, the judge considers it necessary to obtain the status of the subscriber equipment does not have to be owned by the company. For contract enough that the subscriber had the right to use the necessary equipment.

CASE STUDY. The company did not have their own electrical networks. To get electricity, it has concluded an agreement with the company, which had a network connected to the networks of a regional energy organizations, and at the same time its own power (which were used) for the production of electricity. That is, the company passed the electricity company on their networks, and the energy consumed from own production (with the possibility of a backup power supply from an external supplier). The Court has described the deal as a tripartite agreement with the two power supply authorities and found there is no contradiction legislation (Decree of the Federal Arbitration Court of the North-Western District of 28.02.05 № A05-10361 / 04-26).

Another option suggested the Federal Arbitration Court of the West Siberian District -zaklyuchit contract is not for electricity, and to use intermediary grids. CASE STUDY. The company, which did not have their own networks, it has been connected to the electricity network provider through another company. The dispute arose around the fact that an intermediary company doubted his right to enter into a contract with the company as a power supply company, as the company did not have a license for such activity. The judges felt that in such a situation, the parties are not obliged to enter into a contract for electricity supply, and may enter into a contract for the use of grids intermediary (Decree of the Federal Arbitration Court of the West Siberian District from 09.08.02 № F04 / 2813-860 / A27-2002).

What tenants

In the business of real estate tenants there are two ways to formalize relations of power supply: included in the lease agreement on the condition that the tenant compensates landlord costs of heat and electricity, or to conclude a direct contract with the power company. Therefore, in addition to the above complexities of direct contracts on power, they face disadvantageous conditions which imposes a landlord seeking to protect its interests.

Perhaps case studies to help convince the lawyer that if time does not insist on establishing relations on the energy supply company, the tenant may be in a very embarrassing situation when she shut off the lights and heating, and will not lay claim to anyone. So, without clearly stated in the contract obligations of the lessor to supply power, to charge him the cost of energy, which the tenant was forced to pay himself unpromising (Decree of the Federal Arbitration Court of the Volga-Vyatka region from 30.01.06 № A11-13816 / 2004-K1-9 / 876-180).

CASE STUDY. The Federal Arbitration Court of the Volga-Vyatka district considered such a situation. Supply authority of tenants threatened to disconnect electricity in case no one to repay the power supply contract. Companies to avoid interruption of business, had no registration of the payment of the required sum.

To seize money from the power industry was not so easy. The judges concluded that the company repaid debt for a third person, and suppliers had to accept the performance (p. 1, Art. 313 of the Civil Code). On this basis, the Court refused to collect the money (the decision of the Federal Arbitration Court of the Volga-Vyatka district from 17.11.2000 № A82-127 / 2000-G / 1).

Therefore, the lessee must decide how to make the relationship about power. For this there are two ways.

Include the condition of the power supply in the contract with the landlord. HAP contract to the lessor the costs for electricity is probably the best way out for the tenant if the owner of the premises is ready to consider the interests of «tenants» and to provide transparent accounting of energy consumption.

In this case the tenant does not need to think about the rights of the receiving equipment. The judges unanimously agreed that such contracts are not contracts of energy supply and, therefore, do not require special conditions necessary for contracts of this type (p. 22 newsletter of the Presidium of the Russian Federation from 11.01.02 № 66).

But this method has one major drawback: the lessor appears significant lever of pressure on the tenant. At any time, in a real or false pretenses landlord can turn off the light and warmth in the occupied areas. And the company’s position in this case would be rather weak.

The ability to force the landlord to renew energy for the court, of course, there is. Indicative following example.

CASE STUDY. Lessor (the defendant), turn off the electricity in the premises occupied by the lessee. The lessee (the plaintiff) has demanded the defendant to restore the power supply due to the inability to use the space for other purposes. Courts of first instance and appeal courts refused to satisfy the requirements of the tenant. His conclusion are motivated by the fact that electricity supply facilities are not disputed is the responsibility of the landlord, and he is not an energy supply company. However, the Court of Cassation did not support this approach.

The Court found that the room is intended for use at the clinic. Without the power to use the premises for these purposes is not possible. That is, the defendant violated the rule established by paragraph 1 of Article 611 of the Civil Code (the room is not fit for purpose). Therefore, the judge concluded that in such a situation, the tenant is entitled to demand the elimination of violations of the rights of ownership (Art. 304 of the Civil Code), which are based on Article 305 of the Civil Code apply to the tenant. In addition, the contract was written obligation to compensate the tenant utility costs. On this basis, the judge concluded that the landlord must provide a counter utilities. So, talk about the power failure as a lawful action is impossible (the decision of the Federal Arbitration Court of the Moscow District of 25.12.06 № KG-A40 / 12238-06).

In the above-mentioned ruling the judge came to yet another extremely interesting for tenants conclusion: the law (Art. 546 of the Civil Code) provides the right to disconnect the power supply only electricity company.

However, in other districts and a possible approach to such disputes. The judges considered that in this case a violation of a contractual obligation, and proprietary-legal methods of protection do not apply (judgment of 25.09.07 № F04-6601 / 2007 (38491-A03-30).

But no matter what the position of the court, the tenant will have to deal with the de-energized outlets at least for the time being until it is taken out and executed the verdict. To avoid such a situation can be, if you go directly to the power industry.

To conclude a direct contract with the power company. Such an agreement will relieve the company from the sword of Damocles of a power failure at odds with the landlord. On the technical side to conclude such an agreement much more difficult. But if the company plans to settle in rented premises in the long term, it makes sense to consider this variant.

However, it happens that the energy supplying organizations are not willing to communicate with tenants. Yield can be found in this case. It is possible for the court to compel the supplier of energy to contract. To justify such a requirement will help position which formulated the Federal Arbitration Court of the West Siberian District. The judges pointed out that such agreements are public, which means supplying the company is not entitled to deny them custody, if there is a technical possibility (Art. 426 of the Civil Code). With regard to the necessary equipment, the judges found it sufficient that it is part of the leased object (Decree of the Federal Arbitration Court of the West Siberian District from 18.09.07 № F04-6425 / 2007 (38262-A03-10).

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