Applying for compensation for lost profits imposes on the claimant the obligation to also prove the real possibility of obtaining the specified income and the measures taken by him for this purpose.
The Civil Court of Cassation drew attention to this (case No. 161/14197/20 ). In it, the person sued the joint-stock company for the recovery of damages (lost profit) in the amount of more than UAH 1 million.
The husband motivated this amount by the fact that the defendant does not allow him to enter the purchased non-residential premises, rents them out (sublease) and receives income from this. The plaintiff believed that as a result of such actions, he suffered losses in the form of lost profit, which consisted in the loss of the opportunity to receive rent for these premises himself.
The courts of the first two levels agreed with the validity of such demands. Instead, the CCS noted that according to Article 22 of the Civil Code, only those losses in the form of lost profit that could actually be received with proper performance of the obligation are compensated. Therefore, the plaintiff must prove that he could and should have received certain incomes and only the defendant's illegal actions became the only and sufficient reason that deprived him of such an opportunity.
Also, the plaintiff must prove the fact that he took certain measures to receive such income. If the non-receipt of the expected income is a consequence of the negligent behavior of the creditor himself, such lost benefit is not subject to compensation.
In addition, enrichment of the creditor is unacceptable. In other words, the restoration of property at the expense of the debtor must be carried out taking into account the proportionality of compensation and damages.