14.10.2020 — Broadening of Evidence Options: Fact of Works Acceptance May Be Confirmed by Letters Sent Via Telegram or Other Messengers

In one recent case the State Commercial Court of the Moscow Region confirmed that it is admissible to prove the facts and the will of parties connected with conclusion and performance of contracts by messengers. At the same time, the arguments of another party that such way of communicating was not provided for in the contract and that the persons participated in correspondence were not duly authorized to conclude the contract and accept its performance were dismissed by the court as frivolous and contrary to the party’s previous conduct.

In the case at hand, the customer claimed the return of unearned advance payments from the contractor, arguing that the contractor failed to render services and lacked grounds for payment. The contractor objected to the claim and argued that the fact that the advance payment had been earned can be confirmed by the reports on the services rendered. These reports were sent to the customer’s representative in Telegram Messenger which was used between the parties as a matter of practice. The contractor argued that the customer did not object to these reports.

The lower courts’ opinions on the admissibility of electronic correspondence as evidence of the contract performance differed. The first degree court supported the customer, explaining that sending the reports in Telegram Messenger was not agreed between the parties in the contract and that the contractor failed to present evidence that the persons taking part in correspondence were duly authorized to accept the contract performance.

However, the appellate and cassation courts did not agree with such formal approach and accepted electronic correspondence in messengers as customary business practice. Furthermore, the courts dismissed the customer’s arguments that such way of communicating was not provided for in the contract as contrary to its previous conduct, as the customer had not objected to exchange of documents under the contract via Telegram Messenger before the court proceedings. Based on the above, the courts accepted the performance of works as proven and dismissed the customer’s claim (Ruling of the State Commercial (Arbitrazh) Court of Moscow Region dated 14.10.2020 on case No. А40-93872/2019).