Any legal relations between organizations or citizens that are associated with various financial transactions are regulated through the conclusion of contracts in writing. In this way, the parties discuss lists of mutual rights and obligations, as well as types of liability for their non-fulfillment. One of these types of liability and a way to ensure fulfillment of obligations is a forfeit, the concept of which is enshrined in the Civil Code of the Russian Federation.
The essence of this sanction measure
According to the provisions of Article 330, a penalty as a way to ensure the fulfillment of an obligation is the amount of money established by the provisions of the law or the terms of the contract that must be paid by the debtor to the creditor in case of failure to fulfill or improper performance of the respective obligations, even if these actions did not cause losses to the injured party.
The amount of the sanction payment is determined on the basis of legal norms or the terms of the contract. The indicated amount shall be paid without fail if this is announced by the creditor. If the penalty as a way to ensure the fulfillment of an obligation is exacted in the form of a fine, the procedure for its collection is established by civil and tax standards.
The amount of the specified payment under the Civil Code of the Russian Federation is determined on the basis of the total amount of the debt and the period of non-performance fixed in the contract of action. If the offender in a voluntary form refused to pay the amount declared by the injured party, it is necessary to file a lawsuit in court to recover the debt by force.
Differences and similarities between the penalty and the deposit (pledge)
In civil law, there are two ways to ensure the fulfillment of an obligation: forfeit and pledge, which are often confused. The similarity of these concepts is as follows:
- their payment is subject to a separate agreement in the form of a written document;
- both measures are expressed in cash;
- in case of refusal to pay the indicated amount voluntarily, the court may force the guilty party to make the necessary payments to the creditor.
Differences in concepts are as follows:
- the first may be recovered in case of non-fulfillment or poor-quality fulfillment of obligations, and the second - in case of non-fulfillment of the terms of the contract;
- the absence of a written agreement on the recovery of the penalty entails the impossibility of collecting it, and in relation to the deposit - it does not give the right to invoke the testimony of witnesses when considering the case in court;
- the first is to a large extent a security measure, and the second is the carrier of the security and payment function;
- the penalty as a way to ensure the fulfillment of the obligation may be reduced by a court decision, and the deposit is a fixed payment.
Both of these concepts are applied in various areas of legal relations between citizens or organizations as a way of protecting the interests of the parties.
Penalty as a way to ensure fulfillment of obligations: its types and functions
The specific type and amount of the charge will be determined on the basis of the function of the specific sanction measure and the scope of the damage caused by the counterparty. For example, if the supplier allowed a delay in delivery or short delivery of goods, the contractor must pay the amount determined by the terms of the transaction between the parties.If there is an exchange of things of good quality by the seller at the request of the buyer, in case of loss, they are recovered from the second side.
Article 394 of the Civil Code of the Russian Federation defines four types of forfeits:
- alternative;
- credit;
- penalty box;
- exclusive.
The application of any of the above sanctions measures and its amount depend on what type of penalty is applied for certain legal relations.
Alternative
This type of penalty as a way to ensure the fulfillment of an obligation implies the possibility of the right to choose a compensation option for the affected subject of the contractual relationship. In a written agreement, it is necessary to prescribe the condition that there are several options for paying compensation for violation of key terms of the transaction.
If the specified condition is contained in the contract, the type of compensation awarded may be determined with respect to the guilty party. In this case, the victim himself chooses how he wants to receive compensation: to pay the damages or to recover the penalty under the law, the amount of which is set depending on the price of the contract. If the injured entity chooses the second method of compensation, the guilty party must pay the accrued amount in the manner determined by the victims themselves.
Set-off penalty
According to the provisions of the norms of Russian civil law, to recover damages for a penalty as a way to ensure the fulfillment of an obligation, if its type is a credit sanction, it is possible only within the amount that is not covered by this measure. That is, if the injured party received accrued payments for the delay from the guilty party, then she has the right to receive compensation for losses only within the remaining amount.
For example, the parties entered into a supply agreement, and the buyer did not pay the due amount on time. In this regard, the supplier incurred losses in the amount of one hundred thousand rubles. The contract contains a condition for the payment of a fine in case of violation of the essential terms of the contract in the amount of thirty thousand rubles. Thus, a set-off penalty is recoverable in the amount of seventy thousand.
If the agreement does not contain a condition on the ratio of the losses incurred to the accrued penalty, the corresponding sanction financial measure shall be applied.
Penalty penalty
A fine is the next way to enforce obligations in the classification of forfeits. The essence of this sanction measure is as follows: the injured party has the right to recover from the party that violated the terms of the contract both the losses incurred and the fine at the same time. This right is provided for in Article 622 of the Russian Civil Code and Article 13 of the Law on the Protection of Consumer Rights.
For example, the parties entered into a supply agreement. In this case, for the delay in delivering things under the contract, the goods penalty as a way to ensure fulfillment of obligations will be calculated as follows: if there are losses in the amount of one hundred thousand rubles and a penalty in the amount of ten thousand, the total amount of payments will be one hundred ten thousand rubles.
In cases where one of the subjects of the contractual relationship is an individual entrepreneur or legal entity, the application of the penalty as a sanction in the form of a penalty or a fine is mandatory. The basis for the collection is the decision of the tax regulatory authorities if the amount of the company's debt is up to fifty thousand in rubles, and for individual entrepreneurs - up to five thousand. If the amounts exceed the indicated values, you will need to go to court to receive compensation.
Exclusive type penalty
When applying this sanction measure, the penalty applies only to the forfeit, the condition for which is contained in the contract concluded by the parties. In this case, if losses arise from violation of the terms of the contract, they are not recoverable.
In the presence of such a penalty, the injured party is entitled to receive only those compensation payments that are expressly provided for by the transaction. Therefore, if this type of forfeit takes place, it is best to work with trusted contractors.
The procedure for the collection of forfeit
According to the Resolution issued by the Plenum of the Supreme Arbitration Court of the Russian Federation No. 63 on forfeit as a way to ensure fulfillment of obligations, the collection period may be calculated from the moment the terms of the contract are fulfilled by the affected party.
Collecting under the contract is necessary in four stages:
- Establishing the fact of the existence of a condition for the payment of a penalty in the contract In its absence, the general provisions of Russian civil law apply.
- Calculation of the recoverable amount by calculating the period of delay and interest for each day.
- An attempt at a peaceful settlement by sending a written complaint.
- Judicial resolution of the case (if the case was not resolved at the third stage).
Judicial Dispute Resolution
According to the norms of civil law, the amount of a fine or penalty is set by the court on the numbers indicated in the lawsuit. Most often, the process takes some time due to the complexity and the need to provide additional evidence.
Claims are filed, as a general rule, at the place of registration of the defendant. The plaintiff must submit to the court a list of evidence that will justify the lawfulness of the recovery of debt from the person who violated the terms of the contract.
Before submitting the application, the injured party must pay the state duty, the amount of which is calculated based on the amount of the penalty. If all evidence is accepted by the court as true and a positive decision is made, the defendant will be charged the amount of the debt, the fee paid and other expenses of a procedural nature (for example, payment for the services of a representative).
Forfeit is the type of obligation that is recommended to be repaid in a pre-trial manner. If the case is brought to court, for each day from the beginning of the delay to the final decision, the amount of the penalty increases.