The most important thing when concluding an agreement for its parties is the presence of guarantees for the fulfillment of obligations under it, since any entrepreneurial activity has as its main goal profit. Contributes to the desire of the parties to such a task institution, ensuring the fulfillment of obligations. In practice, this means guaranteed profit or profit. What is a contractual penalty, we will consider in this article.
What is a forfeit?
The effective action of the penalty and its widespread use as a guarantor of the fulfillment of the obligations of the agreement is primarily due to the fact that it is a suitable tool that simplifies the compensation of losses caused by improper performance or non-fulfillment of obligations by the debtor in principle.
In addition, the significance and prestige of the penalty are based on the following inherent features:
- The assigned amount of liability in case of violation of contractual obligations, about which both parties are notified even at the time of conclusion of the agreement.
- The feasibility of obtaining a penalty in the presence of a violation, when there is no need to prove the existence of losses caused by non-compliance with the required conditions. Contractual penalty in judicial practice is used quite often.
- The parties may, at their discretion, determine the terms of the contract for the forfeit (excluding only its type as lawful), including its components, the ratio of losses, the calculation method, which allows it to adapt to the specific relations of the parties and increase its impact.
They strive to ensure fulfillment of obligations at any time. In the current conditions of the crisis in the economy, when there are many cases of violation of agreements, the importance of such means of strengthening discipline becomes even higher.
How the contractual penalty differs from others. About it further.
Forfeit and its types
A penalty or a fine / penalty is a sum of money that is determined by an agreement or law and is obligatory for payment to a creditor in case of improper fulfillment or non-fulfillment of obligations in principle (special case - delay in fulfilling the requirements).
The specificity of the forfeit lies in the fact that it is both a measure of security and a means of civil liability.
The objectives of the forfeit are as follows:
- The incentive of the debtor to fulfill the obligations assumed.
- Prevention of a situation in which conditions may be violated. How the calculation of the contractual penalty is carried out, many are interested.
Article 330 of the Civil Code of the Russian Federation confirms that the penalty, penalty and penalty are essentially the same thing, the difference is only in the name.
In order for the parties to incur an obligation to pay a penalty, it is necessary to include such a condition in the main agreement. It must have a written form, regardless of the structure of the main contract. When the condition for the penalty is specified in the contract, the creditor shall not prove the fact of causing losses. He may demand from the negligent debtor an additional amount - a contractual penalty, which makes up for property losses that have arisen due to the unfair performance of obligations.
The penalty is an auxiliary obligation (accessory), following the main, the implementation of which it contributes. The expiration of the main obligation or the recognition of it as invalid entails the termination of the obligation to pay the penalty.However, there are some peculiarities: when the right of claim for the primary obligation is assigned, the corresponding claim for the penalty is also transferred to the new creditor, while the contract may stipulate that only the right of demand for the primary obligation is transferred to him, while the right to recover the penalty is transferred will still belong to the original creditor. When transferring a debt, the same situation may arise. What is the difference between legal and contractual penalty? Let's see below.
The provisions of the Civil Code of the Russian Federation on basic obligations extend to an additional obligation to pay a penalty. So, it can change, terminate on a common basis, etc.
Penalty and fine
The penalty is classified in the Civil Code of the Russian Federation (Art. 330) for a fine and a fine without determining their distinguishing features. In civil law and turnover, criteria were developed to distinguish between these concepts. A fine is a repeatedly recoverable amount expressed by means of interest in proportion to a predetermined amount (for example, 5% of the cost of the work performed on time). A penalty is such a penalty that is continuously calculated, its total is constantly increasing (for example, 1% for each overdue day). Thus, the penalty is used in certain cases, for the most part in the case of untimely fulfillment of obligations, primarily payments (for example, when a loan is overdue).
In addition, the classification of the penalty occurs on other grounds. A particular case is the grounds for the occurrence, depending on which the legal and contractual penalties are distinguished.
Legal penalty
A legal penalty is such a variation of it that is determined by law and is levied regardless of whether such an obligation is specified in the agreement of the parties. For example, a seller who did not replace goods of poor quality on time must pay a penalty for each expired day, which amounts to 1% of the price of the product.
Negotiated
The contractual penalty, in turn, is determined by agreement of the parties in a special form, to which the following requirements are presented:
- agreement on the payment of the penalty must be fixed in writing;
- if the first requirement is not complied with, the agreement becomes invalid.
Such a penalty usually applies when a legal penalty is not accepted. It is worth noting that the value of the latter can be increased with the consent of the parties, if only such an action does not conflict with applicable law. The collection of legal and contractual penalties is made in different ways.
Credit and penalty
Another classification is based on the correlation of the right to forfeit and the right to compensate for losses. At the same time, the following penalties are distinguished:
- Set-off - is charged at the expense of the losses incurred. At the same time, the latter are recovered as much as they are not covered by the amount of the penalty.
- Penalty, or cumulative - is charged in addition to fully indemnified. This variety is especially difficult for the offender, and its use has the most effective preventive effect. For example, if a state contract for the volume of any product was not fulfilled within a certain time period, the supplier must pay the buyer 50% of the cost of the product that was not delivered. In addition, it provides for compensation for losses incurred by the other party. The size of the contractual penalty can be quite large.
Other species
Exceptional - limits liability only by payment of a forfeit without the possible presentation of claims for reimbursement of losses incurred. In this form, most of the fines specified in the transport codes are assigned.
Alternative - makes it possible to either demand a penalty, or to cover losses.The nature of this variety makes it the least popular, at least until it becomes clear what kind of claim is better and more profitable to make.
A contractual penalty in the Civil Code of the Russian Federation, being a special way of bearing responsibility, forces the violator to fulfill obligations unfavorable in the property plan and to pay certain amounts, the repayment of which does not exempt him from fulfilling the basic requirement. If the debtor has not begun to fulfill the obligations imposed on him, then he shall be exempted from the fulfillment of the main claim in case of payment of the penalty and compensation for the losses incurred by the creditor. If the debtor cannot be held liable for unfulfilled obligations, the creditor does not have the right to demand the payment of a penalty from him.
We have analyzed the main types of contractual penalty. But this is not all the important information.
Forfeit as a means of collateral
The penalty is designed to encourage the debtor to discharge his obligations in an appropriate manner. It can provide various obligations, both monetary (payment for work, services, goods), and non-monetary (for example, violation of delivery dates). Cash can be refunded both in full or in part. Collection of a contractual penalty is not always a simple matter.
Since the penalty clause has an additional character, it is necessary to focus on the term of the main contract. As soon as it expires, the condition of the forfeit terminates. In this case, two options are possible: either carefully monitor the deadlines, or write in the contract a condition in which it will be indicated that the penalty continues even after the expiration of the agreement in accordance with the conditions accepted in it.
With the help of a forfeit, it is also possible to fix the obligation of the debtor to take any actions in favor of the creditor. For example, a requirement to provide a bank guarantee.
Often a contractual penalty is enforced in an arbitration court.
Penalty as a means of civil liability
As a criterion of liability, the contractual penalty should be considered when correlating it with losses. It is generally accepted that the penalty in this case is credited. So, if the penalty is 60 rubles, and the amount of losses is 90 rubles, then 90 rubles will be recovered, of which 60 rubles. make a penalty, and 30 rubles. - uncovered losses.
Forfeit payment
The payment of a contractual penalty (Article 330 of the Civil Code of the Russian Federation) can be made both for a continuing violation, or for a one-time violation. A continuing violation is most often manifested as a delay in payment of the contract. When establishing the liability of the debtor, it is necessary to correctly indicate the term for calculating the penalty. There are two possible options, which you need to choose depending on the specific situation:
- accrual for each overdue day (penalty);
- a single payment of a fine in a certain amount calculated in relation to the amount of goods.
In what forms is a legal and contractual penalty levied?
In case of a one-time fine, the penalty must be established if the fact that the counterparty fulfilled the obligation is directly important. If it is predominantly that the conditions are met at a certain time, then a penalty in the form of a penalty is more suitable. In order to avoid problems, it should be remembered that for some actions of the other side it is impossible to establish a penalty (and for legitimate ones as well).
A claim for the recovery of a contractual penalty must be carefully considered.
Single sided failure
Thus, a unilateral cancellation of a contract may relate to actions provided for by law if it has legal or contractual grounds. Since June 1, 2015, a restriction has appeared on the inclusion in the contract of a condition of unilateral refusal. It lies in the fact that if entrepreneurs are not all parties, then only one party that does not carry out entrepreneurial activity can refuse unilaterally.In the case of the legitimacy of the cancellation of the agreement, the calculation of the penalty is impossible due to the absence of violation.
It is also impossible to charge a penalty to a penalty, since such an action promotes the use of two measures of responsibility for one violation.
Statement of claim for a penalty
You can always file a lawsuit in the court to recover a forfeit from the person who violated these conditions. This is one of the ways in civil law to ensure the fulfillment of obligations on conditions concluded between the parties.
The forfeit, in fact, is the sanction applied when the contract is not fulfilled (or the requirements of the law) or the deadlines for the performance of individual actions on it are violated. The penalty, as already noted, can be legal (when it can be recovered by law, regardless of the contract) and contractual (when the parties establish such an opportunity). The size of the legal penalty is changed at the request of the parties, but only when this does not contradict the Civil Code of the Russian Federation.
The preparation of the statement of claim for the recovery of the penalty directly depends on the grounds for the occurrence of such a right. The correctness of determining its size and the collection order are very important.
The basis for the recovery of the forfeit is the fact that the obligations are violated (the contract has not been fulfilled or the deadlines have been violated), the debtor's fault (any form thereof) has been discovered. The plaintiff is obliged to provide evidence of any losses due to violation of the deadlines for the performance of the obligation, since the penalty in this situation is a measure of responsibility for the presence of an unfair attitude to its obligations.
What the lawsuit will contain is determined by the general rules for the recovery of the forfeit. First of all, the relationship that arose between the defendant and the plaintiff must be described: a contract was concluded or an obligation arose for other reasons; The term for fulfillment of obligations is indicated, what is the reason for its non-fulfillment or the term for the performance upon. Mandatory enclose evidence of these circumstances in writing and give the calculation.
The lawsuit is filed with the court according to the general rules: at the place of registration or the actual location of the defendant, his office (if the defendant is a legal entity). If the recovery of the penalty proceeds from the requirements for the protection of consumer rights, it shall be filed at the plaintiff's place of residence. The cost of the claim, which will be in the amount of the penalty, is determined by the level of the court: the case will be considered in a magistrate’s court (not more than 50,000 rubles) or district. The state duty must always be paid, with the exception of the consumer's claim.
The defendant may prepare an objection to the claim: arguments are given for the lack of guilt that the obligations were not fulfilled (for example, if the plaintiff violated certain conditions of the contract), and it is also proved that the amount of the penalty exceeds the consequences of the violation of obligations (when the penalty is higher than the price of the contract).
So, we examined how the contractual penalty is calculated.