Failure to fulfill obligations under the contract of one participant is a reason for demanding compensation and compensation for the penalty of another. The best option is to write down liability measures in the contract itself. This will become a kind of insurance against the wrong actions of the second side.
Ensuring performance of obligations under the contract
When concluding an agreement, there are special measures that can encourage participants to fulfill existing obligations. This is a deposit, a bank guarantee, a guarantee, a penalty and other methods. In this case, these tools must be prescribed in the contract.
The most common type of security includes a penalty for failure to fulfill obligations under a contract. This is an amount that increases depending on how many days the delay has lasted, or having a fixed amount in the form of interest in the recovery of fines and penalties.
The deposit is understood as the amount paid by the counterparty before the transaction as a proof of their firm intentions to enter into the relevant legal relationship.
Under the pledge are meant various material values, including property owned by the pledgor and serving as collateral for the repayment of debt.
A guarantee is an obligation in which the surety undertakes to repay the borrower's debt if the latter is not able to repay the debt by the time of repayment.
A bank guarantee is understood to mean the corresponding obligation, drawn up in writing, where the bank undertakes to pay money to the customer in case of failure to fulfill the terms of the contract.
As a rule, the term for fulfillment of obligations is prescribed in the contract. In some cases, this period is set in court (for example, at the death of the victim).
The following is the most common type of collateral under a contract.
The amount of the penalty for failure to fulfill obligations under the contract
The penalty for failure to fulfill obligations under the contract may be determined as a result of reaching a peace agreement or as a result of a court decision. The amount of the penalty is determined by law. At the same time, a different amount is allowed in the contract for the performance of work.
If the fulfillment of obligations under the contract is performed in parts, then the penalty is calculated on the basis of the parts of unfulfilled obligations. The court has the right to reduce the amount of the penalty in case of unreasonable increase.
The obligation to prove the claims against the debtor is not the responsibility of the creditor. The counterparty’s evasion of the transfer of the necessary amounts qualifies as a violation of the written agreement. In Art. 331 of the Civil Code of the Russian Federation indicates the obligation to issue a penalty for non-fulfillment of obligations under the contract documented. For this purpose, an act is drawn up. These funds are not subject to VAT.
Contractual penalties
Legal penalties are applied for specific types of legal relations. For example, for shared construction law of the same name No. 214-FZ is in force, and liability for violations of the contract of sale of goods occurs in accordance with Law No. 2300-1 “On Protection of Consumer Rights”.
Insurers are required to pay a penalty in case of refusal to pay an insurance premium, that is, for failure to fulfill obligations under an insurance contract. The same legal consequences occur when the drawer rejects the period of execution of the debt receipt.Penalties are charged to residents and responsible tenants of apartments for violation of the terms of payment for housing and communal services.
Basic rules for calculation
The parties may agree on a penalty for failure to fulfill obligations under the contract. Such a penalty is voluntary. For example, a supplier can establish it under a major contract in the amount of 5% of the advance payment. Such costs are one-time.
Penalties are applied by mutual agreement by writing the appropriate conditions in the contract. In this case, it becomes almost impossible to challenge the amount. However, even if the creditor's claims are justified, but if reasonable losses are exceeded, you can go to court to reduce the amount of payment.
In order to minimize risks, as well as to avoid litigation, it is recommended to initially agree to pay a penalty within the limits provided by law. For example, if the penalty is determined at a rate of 0.1% for each delayed day, then the parties may agree to pay 0.5%. Thus, when agreeing on the amount, you need to be guided by reasonable limits.
Limit amounts
The maximum and minimum sizes of sanctions depend on the grounds on which they were charged. When approved by current legislation, a decrease in the value is not possible. In this case, the size can only increase.
Thus, the minimum amount is determined by law, and the maximum is calculated in accordance with the terms of the contract.
Application Examples
The following examples will help to understand how the penalty for failure to fulfill obligations under a contract is determined.
According to the Law on Electricity Saving No. 261-ФЗ, a company supplying electricity must carry out installation and verification work in a certain period. If the master does not fulfill his duties at the appointed time, a penalty is charged to the company in the amount of 1/300 of the Central Bank refinancing rate for each delayed day. The maximum size of the penalty cannot be higher than the cost of the work.
When contracting, a penalty of 3% is approved in case of failure to fulfill obligations under the contract by the contractor. The parties are entitled to increase this amount. As a rule, the maximum size is not more than the cost of the work. For example, if the apartment is planned to replace a crane worth 1 thousand rubles, but the workers did not appear at the appointed time, the customer was inconvenient. If the amount of the penalty for non-fulfillment of obligations under the work contract is 3.5% for each delayed day, then the total amount may not be more than 1 thousand rubles.
The maximum penalty is affirmed as a percentage in relation to the amount of debt. For example, the contractor did not perform construction work, the cost of which is 1 million rubles, and the contract contains a penalty of 7%. Thus, the customer can collect a sum of 70,000 rubles from the offender at a time.
Calculations
Sanctions are applied by using a simple formula to calculate. The settlement period can be considered the period from the moment the debt was created until the fulfillment of obligations. Also, the period may be a certain number of days.
If the parties failed to resolve this moment on their own, then it is allowed to file a lawsuit with the judicial authority. Then the court will appoint the appropriate amount.
Penalties are not imposed after the termination of the contract, unless otherwise specified by its terms. On the day of termination of the contract, the accounting department makes the last postings. After that, the debt no longer increases. However, if the contract has expired, liability for non-fulfillment of obligations under the contract does not stop.
Fines for additional payments are tied to the main debt. Therefore, after its termination, these fines cease to exist.If the debt has been partially repaid, the interest is calculated in shares with approved payments.
Set Amount Reduction
Judicial practice provides for the possibility of reducing the amount of fines if the amount of the creditor's claims is incommensurable with the debt itself. Then the competent authority carries out an assessment of costs, analysis of the situation and approves the real amount to be reimbursed.
In this case, the facts and evidence of guilt, as well as the nature of the violations, are analyzed. To reduce the size of the penalty for failure to fulfill obligations under the contract, the Civil Code provides for the possibility of bringing evidence by the defendant on the grounds for this. Any evidence may be used as evidence. The court determines the final amount of the sanction based on the amount of deductions.
Procedure for default
In the event that obligations under the contract are not fulfilled by one of the parties, the other party should first make a claim about it. The document is in writing. It is necessary to indicate the following information in an official style (avoiding emotions):
- Name of participants.
- Addresses and details.
- The reason for the controversial situation.
- The period during which a party must fulfill obligations.
- Specific contract clauses that are violated.
- Claim for compensation for losses.
It is necessary to notify the party that in the event of further default, the situation will be resolved in court. If there is no experience in drawing up a claim, then you need to contact a lawyer.
If you ignore the claim, you can go to court to recover the penalty for failure to fulfill obligations under the contract. A statement of claim must be entrusted to a lawyer so that the document displays all the necessary points in the correct form. Otherwise, the court will not consider the claim.
Cancellation of penalty
If the claims for compensation from the debtor are justified, the court will refuse the defendant to satisfy the petition to reduce the amount of the penalty for non-performance or improper performance of obligations under the contract. The court may resolve the following disputes:
- With a significant overstatement of the amount owed by the collector from the debtor.
- The percentage of interest increased several times in comparison with the size established by law.
- Obligations were not fulfilled for a short period of time.
The judicial authority will not consider the debtor's application for the reduction of the penalty in a separate manner when it is based on the following facts:
- The presence of great financial difficulties.
- Refusal to fulfill the contract of sale, which is unreasonable.
- The irresponsible actions of the counterparty on the part of the defendant who have a debt to him.
- Participation in other legal proceedings.
- Arrears of other obligations (including tax fees and penalties).
- Property encumbrance.
- Mortgage agreement with the pledge of the only housing.
- Lack of private investors and government funding.
- Repayment of debt at the time of the hearing.
The special role of social significance, poor health, family difficulties and more.
It is not necessary for the creditor to prove the fact of damage. But if there is a clear desire to seek redress, then the evidence base will be an additional reason for the court to refuse the defendant to satisfy the petition to reduce the amount. To do this, take into account the arguments about the possible negative consequences and harm that may occur.
Conclusion
The use of a penalty for failure to fulfill obligations under a service agreement, purchase and sale, contract and other cases helps to build effective business cooperation, preventing the risk of fraud. Sanctions restrain from default, encouraging all parties to comply with the provisions of the agreement.The amount of compensation is established by law or contract. In some cases, it can be challenged by going to court.