Proving cases from a financial leasing agreement
The subject of the proof includes the proof:
1) the existence of contractual legal relations based directly on the financial lease agreement;
2) the fact that the lessor has transferred property to the lessee that meets the terms of the contract in terms of quality and completeness, intended purpose;
3) violations by the lessee of the obligations assumed under the agreement, which determine the amount, method, form and frequency of payments specified in the financial lease agreement, and, as a result, the total amount of arrears on lease payments;
4) the presence (absence) of deferred lease payments.
When determining the subject of proof, an analysis of the terms of the contract will determine which amounts are included in the lease payments.
Regarding the lessor's claims for debt collection on lease payments, it is necessary to take into account the specifics established by art. 21 of the Law on Leasing, namely:
1) the amount, method of implementation and frequency of lease payments are determined directly by the lease agreement.
2) the terms of the agreement may provide for a deferral of lease payments;
3) the actual transfer of the leased item must take place (in the absence of a clause in the contract providing otherwise).
With regard to the burden of proof, the lessor is obliged to prove the existence of the stated circumstances of the violation by the lessee of the obligations assumed under the contract. The necessary evidence should include evidence aimed at establishing actual obligations regarding the amount, method, form and frequency of payments determined by the contract. In this regard, it is mandatory for the court to provide and examine the lease agreement.
The evidence confirming or refuting the stated circumstances is the financial documents corresponding to the terms of the contract, containing information about the payment of lease payments. If the terms of the agreement stipulate that the payment of lease payments is carried out on the basis of payment documents submitted by the lessor, the relevant financial documents should be submitted to the court with evidence confirming their transmission to the lessee.
The right of use and possession in relation to the leased item and, accordingly, the obligation of the lessee to pay lease payments arise for the lessee from the moment of transfer of this property to him (in the absence of any other condition specified in the contract).
As a result, it is mandatory to examine the evidence (acceptance certificate) confirming the transfer and acceptance by the lessee of the leased item. In addition to the above-mentioned varieties, it is also possible to identify the claims of the lessee related to the lease agreement, addressed to the lessor and the seller of the leased item, for the recovery of losses caused by the transfer of the leased item of inadequate quality.
When determining the subject of proof and evidence to be presented to the court, in addition to the general requirements for claims for damages, the specifics of leasing legal relations should be taken into account.
Thus, according to clause 3 of Article 19 of the Law on Leasing, the risk of the seller's failure to fulfill obligations under the lease agreement and related losses is borne by the party to the lease agreement that chose the seller, unless otherwise provided by the lease agreement.
According to clause 2 of Article 572 of the Civil Code of the Republic of Kazakhstan, unless otherwise provided by the financial leasing agreement, the lessor is not responsible to the lessee for the fulfillment by the seller of the requirements arising from the sale agreement, except in cases where the responsibility for choosing the seller lies with the lessor.
In this case, the lessee has the right, at his discretion, to make claims arising from the contract of sale, both directly to the seller of the property and to the lessor, who are jointly and severally liable.
In connection with the above, it is mandatory for the court to examine the lease agreement regarding the existence of conditions on the lessor's responsibility for choosing the seller of the leased item. With regard to the seller's liability, paragraph 1 of Article 422 of the Civil Code of the Republic of Kazakhstan should be taken into account, which establishes the seller's obligation to transfer goods to the buyer, the quality of which corresponds to the contract of sale.
An obligatory component of the subject of proof should include proving the circumstances of non-fulfillment or improper fulfillment of obligations, the presence and amount of losses, the causal relationship between them, as well as the guilt of the person who did not fulfill the obligation properly.
The stated circumstances can be established through the use of the following evidence:
1) financial leasing agreements;
2) financial documents confirming the amount of losses claimed for recovery;
3) acts of acceptance and transfer of the leased item;
4) evidence confirming the non-compliance of the leased item transferred to the lessee with the terms of the quality agreement.
Example: the lessor has the right to demand early termination of the lease agreement and the return of the leased item by the lessee within a reasonable period of time, in case the lessee violates one or another condition of the lease agreement, with which the agreement binds the lessor's right to refuse to perform the contract.
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