The payment under the guarantee exceeded the amount of the penalty — unjustified enrichment was collected from the state customer
The parties agreed on a phased supply and installation of equipment. Since the supplier did not fulfill the obligations under the 2nd stage, the customer refused the contract and, by court decision, received the entire amount of the guarantee.
The supplier claimed unjustified enrichment. The customer should have been charged only a fine for improper execution. The amount of the guarantee exceeded the amount of the supplier's liability.
Three instances partially recovered unjustified enrichment from the customer:
• the contract specified that the security is not returned in case of full or partial non-fulfillment. Such a condition can be applied only to the part of the guarantee that covers the amount of the breached obligation. Otherwise, it violates the balance of interests of the parties and leads to unjustified enrichment of the customer;
• in the contract, it is possible to fix the right to retain the collateral that was deposited with money in a larger amount than the actual amount of the counterparty's obligations. The supplier did not transfer money to the customer. Such a condition cannot be applied to the guarantee;
• the amount of the supplier's liability amounted only to penalties for delay before the date of termination of the contract and a fine for non-performance. The customer has not proved that this amount does not cover the consequences of the breach of obligations. He did not declare any losses or other damage.
The RF Armed Forces supported the position.
With regard to the security provided by money, there is an example in practice when the courts did not support the customer, who withheld the entire amount from him for breach of contract. The courts decided: the security can be retained only in the amount of the property claims of the customer to the contractor.