The Supreme Court of the Russian Federation: the guarantor of the contractor under the guarantee cannot recover unjust enrichment from the state customer
The parties entered into construction contracts. The customer terminated the transaction unilaterally. Later, he recovered from the bank the full amount of payments under the guarantees that secured the execution.
The losses to the bank were reimbursed by one of the contractor's guarantors. Since the payments under the guarantees exceeded the amount of the penalty under the contracts, he decided to recover from the customer the difference between what he received and what he was entitled to expect.
The Supreme Court did not recover the money:
- according to the Civil Code of the Russian Federation, the rights of the creditor are transferred to the guarantor, who has fulfilled the obligation for the debtor. In this case, he received the rights of the bank under the guarantee agreement that he had to the contractor;
- The fact that the guarantor has fulfilled obligations for the contractor does not give him the right to demand unjust enrichment from the customer. This is not grounds for changing persons in obligations. The guarantor was not a party to the contracts, which means that he was not the victim of the obligation from unjust enrichment;
- the suit was brought against the wrong defendant. The contractor had several guarantors. A person who has performed a solidary obligation for others may recover money from them.
It should be noted that recently the Supreme Court of the Russian Federation supported the courts that recovered unjust enrichment from the customer, since the payment under the guarantee exceeded the amount of a possible penalty. However, the claim was filed by the supplier.
Document: Determination of the Supreme Court of the Russian Federation dated February 7, 2023 N 305-ES22-21173