1. Contractual assurance as to the existing circumstances, in particular that ‘all the necessary permits, licenses, powers, registrations, approvals, and other actions of the debtor necessary to enter into obligations were duly obtained and have legal force’ is a contractual obligation in the sense of Art 234 CC and is thus deemed to be circumstances within the control of the debtor.

The Supreme Court’s position

According to Art 234 II CC ‘obligations arise from contract, from causing of harm, and from other grounds specified in this code’. Clause 11 (e) of the contract states that the debtor is obliged to timely obtain and extend all necessary permits and licenses to fulfil the terms of the contract and carry out its activities, while clause 13-1 (e) assures* that all the necessary permits, licenses, powers, registrations, approvals, and other actions of the debtor necessary to enter into obligations were duly obtained and have legal force. It can be seen from the above that the respondent [assured]** that at the time of entering into the loan agreement, he had a valid license to conduct his activities and undertook to extend the validity of this license. Therefore, the court believes that the respondent’s argument that he could not conduct his activities due to circumstances beyond his control cannot serve as a reason for refusing to pay back the loan.

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*) The English common law analogue of it is ‘representations and warranties’ and the Russian one is ‘заверение об обстоятельствах’ in Art 431.2 CC RF which in essence regulates contractual responsibility for the provision of false information, albeit without directly (textually) qualifying it as an obligation. Such regime of contractual responsibility is similar to a breach of the garantie d’éviction du fait des tiers. Limitation of liability or its exclusion for the breach of such garantie is void (Art 395 II CC).

**) The Collegium used the word ‘qayd etmoq’.