The Elements of the Breach of the Good and the Boundary of the Loss

The article attempts to analyze and revise existing approaches and assessments in the current civil law of the Russian Federation of such categories of civil liability as loss, real damage, lost profits, harm (including moral), their interrelation with each other and the interdependence of their application in case of breach of obligations or the occurrence of tort liability. The author puts forward a non-standard point of view not only on the concept of loss, questioning the integrity and completeness of the formulation of this concept, but also offers a different view on the interpretation and interrelation of concepts related to the measures of responsibility applied by civil law. Conclusions are drawn about the need for legal science to distinguish the concepts under consideration on the basis of objectivity of perception into objective (absolute) and subjective (relative or individual). It is proposed to consider the possibility of introducing new concepts into civil law that unify the types of violations of law that differ in content. In addition, the author raises the issue of the need for strict compliance by the court with a reasonable balance of interests of both the creditor (victim) and the debtor (harm-doer), preventing the occurrence of abuse of law and unfair behavior of all participants in civil law relations. The paper analyzes possibilities for violation by the creditor (victim) of the principle of proportionality of liability (recovery) to the amount of the actual violation of creditor’s right. In the development of the hypothesis based on the analysis of judicial practice, the author gives theoretical recommendations aimed at judicial protection of the violated rights of the creditor (victim) associated with non-fulfillment or improper fulfillment of obligations by the debtor or the occurrence of tort liability of the harm-doer.

1. Sukhanov EA (ed.). Rossiyskoe grazhdanskoe pravo [Russian Civil Law]. 2 vols. Vol. 1: General part. Property Law. Inheritance Law. Intellectual Rights. Personal Non-Property Rights. Moscow: Statut Publ.; 2015. (In Russ.).