The Subject of Proof in Cases of Recovery of Lost Profits: Theoretical Foundations and Problematic Aspects

Abstract

Introduction: The research is devoted to the study of the role of the institute of lost profit in civil law, especially in the form of a form of protection of civil rights. Despite the precise consolidation in Articles 15, 393 of the Civil Code of the Russian Federation, issues dedicated to the subject of proving lost profit remain controversial. The discrepancy in the approaches and understanding of the courts to determining the subject of proof, as well as the presence of problematic issues in civil and arbitration procedural law determine the need to study the existing positions.Methodology: The research methodology was based on general scientific methods (analysis, synthesis, induction, deduction, systems approach) and specific scientific methods (formal-legal, comparative-legal). The empirical basis was formed by the norms of the Civil Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, as well as the clarifications of the highest judicial authorities — resolutions of the Plenums of the Supreme Court of the Russian Federation. An analysis of judicial practice was carried out, including specific cases examined by arbitration courts and the Intellectual Property Court in the period from 2020 to 2025. The purpose of the study is to identify the features of the subject of proof in cases involving the recovery of lost profits.Results: As an independent institution, lost profits began to form more steadily in the 20th century, which resulted in an increase in the number of cases considered by courts on issues of lost profits recovery. The determination of the subject of proof in cases of lost profits recovery depends on the category of obligations (contractual, corporate, delictual) and the circumstances of the dispute. It has been revealed that the most frequent grounds for refusing a claim are the failure to prove a direct causal link between the defendant’s actions and the lost income, as well as the absence of reliable, documented, and substantiated calculations of the amount of lost profits. At the same time, courts recognize lost profits as an evaluative category, and the main calculation methods are based on discounting cash flows; however, uniform criteria for assessing “ordinary conditions of civil circulation” and a reasonable degree of reliability of calculations have not yet been formed in law enforcement practice.Conclusions: Conducting a forensic examination facilitates the calculation of clearer and more precise lost profits, as well as the identification of financial facts and the grounds for their occurrence.