Penalty, late interest and legal interest

Penalty for failure to fulfill obligations under the contract: general issues

The main regulatory document covering the provisions on penalties is the Civil Code of the Russian Federation.
Chapter 23 § 2 of the Civil Code of the Russian Federation provides a definition of the term in question, as well as the conditions for the application of this type of liability. A penalty (penalty, fine) is recognized (clause 1 of Article 330 of the Civil Code of the Russian Federation) as a sum of money determined with the consent of counterparties to a transaction or at the legislative level, payable by the debtor in the event of non-compliance with conditions, poor performance or delay in fulfilling obligations.

Accordingly, there are two types of penalties:

• negotiated;
• established by law.

In addition, based on the interpretations given in the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by courts of certain provisions of the Civil Code of the Russian Federation ...” dated March 24, 2016 No. 7, penalties are possible in the form (clause 60):

• fixed rate - fine;
• regular accruals - penalties.

Depending on the method of offsetting the damage incurred, the penalty is divided:

• for credit, if the damage is compensated in the part not covered by the penalty (clause 1 of Article 394 of the Civil Code of the Russian Federation);
• exceptional if only a penalty is claimed, but not compensation for damage;
• a penalty if the amount of damage is compensated in full;
• alternative, when recovery is made of either the damage incurred or the penalty.

Days of delay

To correctly calculate the penalty, you need to understand when the delay begins. If the contract specifies a date for fulfillment of obligations, then the delay is valid from the next day.

Sometimes it happens that a specific number of calendar or working days is given for contractual obligations to be fulfilled. Therefore, you need to complete them until a specific date. After this day there will be a delay.

This is important to know: Power of attorney to receive cargo from a transport company: sample 2021

But the parties often do not set specific payment deadlines, loan repayment, etc. Then the legislation proposes an appropriate scheme of action. Thus, the counterparty must send a request in writing to perform the actions provided for in the contract. Such a proposal must be considered and implemented within 7 days from the date of receipt under Article 314 of the Civil Code of the Russian Federation. Accordingly, the next day there will be a delay.

Expert opinion

Mikhailov Evgeniy Alexandrovich

Teacher of civil law. Lawyer with 20 years of experience

The delay ends when the person finally fulfills his obligations. In this case, overdue days also include weekends and holidays.

Amount of penalty for failure to fulfill the terms of the contract

The amount of a legal penalty is determined in legislative acts. If the amount of the penalty for failure to fulfill obligations under the contract is not established by regulation, the parties to the transaction have the right to assign it independently.

IMPORTANT! In accordance with Art. 331 of the Civil Code of the Russian Federation, an agreement on a penalty must be drawn up in writing.

Based on the explanations given in paragraph 63 of Resolution No. 7, a written document on the penalty must comply with the requirements listed in paragraphs. 2, 3 tbsp. 434 Civil Code of the Russian Federation. If an agreement on a basic obligation is declared invalid, this implies the invalidity of an agreement on a penalty or fine (clause 64 of Resolution No. 7).

However, if an agreement on a penalty is concluded, in which it is determined that it is paid in the event of failure to fulfill obligations to return the property, due to the invalidity of the transaction, then the invalidity or non-conclusion of the main contractual document does not entail the invalidity of the conditions on the penalty (paragraph 2, paragraph 64).

In practice, the type, amount and procedure for claiming a penalty are agreed upon directly in the agreement. The amount of the penalty is established as a percentage of the amount of the obligation. There are no legal restrictions on the percentage of penalties for failure to fulfill obligations under the contract.

Explanations from experts on various aspects of the application of penalties can be found in ConsultantPlus. For example, the answer to the question whether the amount of the penalty for violation by the parties of their obligations under the contract may exceed the amount of the principal debt. If you don't already have legal access, a full access trial is available for free.

Procedure for calculating penalties

The procedure for calculating the penalty depends on its nature and is determined either by law or by contract.

The basis for calculating a penalty is the failure of the debtor to fulfill an obligation on a specific date provided for by the contract/law. When such an event occurs, the party in whose favor the penalties are paid has the right to demand their payment if the specified circumstances have already occurred and all conditions for its objective calculation have been met: the execution deadlines have passed, the full period of delay is known.

The party whose rights are violated by non-performance or improper performance has the right to demand voluntary repayment of the penalty. To do this, it is necessary to send a written claim to the debtor with a calculation of the amount to be repaid and a demand for its payment. If reasonable deadlines for making the specified amounts have passed or the violating party refuses to voluntarily repay the debt, it is recommended to file a claim in court to enforce collection.

How to correctly calculate the penalty

Calculation of fines and penalties must be carried out based on the requirements of the contract or law and depending on the form in which such fines and penalties are established. This may be a fixed amount, a percentage of the contract value, or a penalty in the amount of damages caused.

Since violations of contractual obligations are often associated with delay in their fulfillment, the penalty is tied to the amount of the obligation and the duration of the delay. To calculate it, you need to define three key metrics:

1. The basis for calculating penalties and penalties. This may be the value of the contract, the outstanding part of the obligation, the amount of losses.
2. The rate at which the calculation occurs. It is determined as a percentage or fraction thereof. In some cases, the law may provide for the mandatory application of the Central Bank key rate.
3. Length of delay. The final period for which the penalty is accrued is calculated based on the contractual and actual performance deadlines. Within the specified period, the rate may be applied for each day/week/month of delay, depending on the requirements of the law/contract.

Formula for calculating penalties under a contract

To calculate the penalty according to the described parameters, the standard formula is used:

Good to know

calculation base * penalty rate * number of full days/weeks/months of delay

Let's look at the calculation using the example of an indemnity agreement. Let's say they provide for a penalty from the debtor in the amount of 1% of the balance of the debt for each overdue day. The balance of the debt is 150 thousand rubles, the overdue period is 3 months. The calculation is made as follows:

• 1) 150 thousand rubles * 1% = 1.5 thousand rubles
• 2) 3 months (June, July, August) = 30 + 31 + 31 = 92 days
• 3) 1.5 thousand rubles * 92 days = 138 thousand rubles.

Percentage of penalties according to law

Legal penalties (Article 332 of the Civil Code of the Russian Federation) allow you to demand the payment of penalties for failure to comply with the parameters of the transaction, regardless of whether such an option is provided for in the agreement between the counterparties or not.

At the legislative level, penalties are established for a wide range of civil law relations. Eg:

1. The Law “Charter of Motor Transport and Urban Ground Electric Transport” dated November 8, 2007 No. 259-FZ provides, among other things, for the payment of a penalty:

• for failure to remove cargo under a cargo transportation contract - a fine of 20% of the payment for services;
• late delivery of cargo - a fine of 9% of the freight charge for each day of delay;
• delay in the departure of transport carrying out regular intercity transportation of passengers - 3% of the fare for each hour of delay, but not more than the fare.

1. Law “On the contract system in the field of procurement of goods, works, services for the provision of government. and municipal needs" dated 04/05/2013 No. 44-FZ establishes a penalty:

• for untimely fulfillment of a contractual obligation - in the amount of 1/300 of the current key rate of the Bank of Russia of the amount not paid on time;
• failure to fulfill contractual obligations not related to delay - in the form of a fine, the amount of which is determined in accordance with the Decree of the Government of the Russian Federation “On approval...” of August 30, 2017 No. 1042 and is stipulated in the contract.

1. The Law of the Russian Federation “On the Protection of Consumer Rights” dated 02/07/1992 No. 2300-I establishes the following amounts of the penalty:

• for late delivery of paid goods - a penalty in the amount of 0.5% of the amount of the prepaid purchase for each day of delay;
• failure to satisfy consumer claims voluntarily - a fine of 50% of the amount awarded to the consumer.

When does the right to forfeit arise?

The right to receive a penalty may arise under the following contractual obligations:

• When buying and selling. Moreover, sellers of products most often pay a fixed fine, and a percentage is applied to buyers for each day of delay.
• Upon delivery. Suppliers are liable for non-fulfillment and disruption of deliveries with a fine, and the recipient is liable for a penalty, distributed over days.
• If during delivery the assortment or quantity of the supplied goods is violated.
• If payment is refused or delayed.
• In case of violation of obligations under the contract not among themselves, but in relation to third parties. Act based on the clauses of the agreement.
• In case of contract agreements, in this case a penalty is imposed on both parties for failure to fulfill the conditions.
• Under loan or credit agreements.
• In case of DDU, a penalty is accrued depending on the refinancing rate of the Central Bank.

If the party that broke the contract does not agree to pay, or violates the agreements reached, it should go to court. Here it would be useful to have a correctly drawn up protocol of disagreements and a correctly calculated penalty calculation.

Changing the amount of legal penalties

According to paragraph 2 of Art. 332 of the Civil Code of the Russian Federation, the amount of the penalty established by law may be increased by agreement of the parties, if there is no prohibition on this. The Plenum of the Supreme Court of the Russian Federation in Resolution No. 7 explains that, despite the absence of instructions on this in the Civil Code of the Russian Federation, the legal penalty for failure to comply with the terms of the contract cannot be reduced at the will of the parties to the transaction (clause 61).

In addition, Resolution No. 7 provides a special case when increasing the legal penalty is impossible.

An increase in the statutory penalty is not allowed in relation to the sanctions provided for in Part 14 of Art. 155 of the Housing Code of the Russian Federation for late or incomplete payment of utilities. Judicial practice is formed on these clarifications (for example, the ruling of the Supreme Court of the Russian Federation dated October 12, 2017 in case No. 305-ES17-10359, A40-51128/2016).

In addition, paragraph 62 of Resolution No. 7 specifies that if the basic obligation is violated, then the obligation to pay a legal penalty can be fulfilled:

• providing compensation (Article 409 of the Civil Code of the Russian Federation);
• novation (Article 414 of the Civil Code of the Russian Federation);
• debt forgiveness (Article 415 of the Civil Code of the Russian Federation).

In this case, the method of terminating the obligation to pay the penalty may also be determined in the settlement agreement.

The penalty determined at the legislative level can be reduced by the court in accordance with the provisions of Art. 333 of the Civil Code of the Russian Federation (clause 78 of Resolution No. 7), that is, in cases where the amount to be paid clearly does not correspond to the principle of reasonableness.

Manual calculation using formula

To calculate manually, you must follow the algorithm for calculating penalties, on which the program for the online calculator is based.

If the number of periods of delay is N, the amount for which the calculation is being made is S, and the accrual percentage is k, then the formula looks like:

Penalty = S * N * k.

1. The algorithm boils down to calculating the penalty for the period using the formula and adding to it the declared amount of the fine.
2. The calculation, based on the refinancing rate of the Central Bank of the Russian Federation, is usually made in case of disagreements with developers, when the penalty for the DDU is calculated.
   It is worth remembering the fact that the rate indicator is floating; the Central Bank constantly has the opportunity to change it. When calculating, you need to identify periods with different indicators, calculate them separately, and then add up the results.

The penalty is calculated using the following coefficients:

• 1/150 of the refinancing rate for individuals;
• 1/300 of the refinancing rate for legal entities.

If the contract omits the percentage of penalties, then you need to use the legal coefficients, they are indicated in Art. 395 of the Civil Code of the Russian Federation.

Collection of penalties under the contract

Claiming a penalty is possible both voluntarily and in court. In practice, this measure of liability is applied, as a rule, through the courts.

In this case, the plaintiff must attach to the statement of claim a document calculating the penalty required from the defendant. The period for which the calculation should be made is determined as follows:

1. Within the meaning of Art. 330 of the Civil Code of the Russian Federation and in accordance with the explanations from Resolution No. 7 (clause 65), the plaintiff’s side is entitled to demand the award of a penalty right up to the day of actual fulfillment of obligations, that is, for example, until the day of actual payment for the goods. Meanwhile, the law or agreement of the parties may define a shorter period for calculating the penalty, or its total amount may be limited.
2. If upon completion of the contractual relationship the primary obligation ends, the penalty is calculated for the period until the termination of the obligation (clause 4 of Article 329 of the Civil Code of the Russian Federation).
3. If upon termination of the contract the basic obligation is not terminated, you can demand not only the payments specified in the contractual document, but also a penalty for their untimely payment (Articles 622, 689 of the Civil Code of the Russian Federation).

The operative part of the court decision indicates the total amount of the penalty calculated at the time the decision was made. Subsequently, after the decision enters into legal force, the amount of the penalty is collected as part of the enforcement procedure by the bailiff.

The penalty has been calculated. What's next?

Simply calculating the penalty is not enough; you also need to collect it correctly. It is generally accepted that in order to collect a penalty you should immediately go to court, but this is not so: you must first try to obtain funds voluntarily (pre-trial). For some categories of agreements, compliance with the voluntary order is a mandatory step. If you cannot provide proof that you have already tried to collect the money, the court will not accept the application at all.

To receive a penalty, you first need to draw up a claim and send it to the counterparty. The claim should refer to the provisions of the contract, indicate the fact of non-fulfillment of obligations and demand payment of a penalty (we must attach its calculation to the document). If you do not receive any reaction from the violator of the agreement, then you can proceed to preparing and submitting an application to the court (calculations are also attached to the application). You can read more about pre-trial and judicial collection procedures here.

Important! The judge checks the correctness of the calculation of the penalty, so you need to take a responsible approach to determining the amount. If an error is discovered, the court will definitely point this fact out to the applicant.

You can receive a penalty if the court rules in your favor and obliges the offender to pay you money. To enforce collection after making a decision, you will need to contact the bailiff service. At the same time, even if the counterparty pays the penalties, this does not mean that he will relieve himself of all obligations: the obligations established in the contract still need to be fulfilled.

Let's summarize. Collection of penalties begins with calculating the amount that can be demanded from the counterparty. But, as practice shows, it is much more difficult to achieve real collection of penalties. Therefore, the optimal solution in such a situation is to contact a lawyer: a specialist will help with both the calculations and the subsequent preparation of documents for the collection of funds.

Sources:

Civil Code of the Russian Federation. Article 330. Concept of penalty

Civil Code of the Russian Federation. Article 332. Legal penalty