The penalty is one of the six methods of securing obligations that are specified in Chapter 23 of the Civil Code of the Russian Federation. Other methods include collateral, deduction, surety, bank guarantee and deposit. In the article, we consider issues relating to the size of the penalty for failure to fulfill obligations under contracts.
General Provisions
The concept of forfeit (in the form of a penalty and a fine) is specified in paragraph 1 of Article 330 of the Civil Code of the Russian Federation. It is understood as the amount established by law or provided by the contract, which the debtor undertakes to pay in case of delay in fulfilling his obligation. In this case, the creditor is not required to prove the fact of causing losses.
Article 12 of the Civil Code of the Russian Federation states that the penalty is one of the options for protecting the rights of individuals and legal entities, and article 329 of the Civil Code of the Russian Federation indicates that it is a method of securing obligations under the contract and applies to both parties.
The established amount of the penalty for failure to fulfill obligations under the contract encourages the parties to the transaction to comply with all conditions. The types of this payment include:
- Penny. As a rule, this is some percentage of the amount of debt for each day. Thus, the amount of interest depends on the number of days during which the contract was not fulfilled.
- Fine. Basically, it is a fixed amount. But it can also be set in percentage.
For example, the agreement may indicate that the penalty for failure to fulfill obligations under the equity agreement is set as one percent of the total amount for each day of delay. In this case, a penalty occurs. But if a paragraph is stipulated that the amount of the penalty for non-fulfillment of obligations under the participation agreement is five percent of the total amount of the late payment, then a penalty is imposed. The following example will help to better understand these types of forfeits.
Example 1: calculation
Debt was formed under the agreement, which spelled out the cost of 100 thousand rubles. (excluding VAT). The party did not fulfill its obligations within 1 year. The penalty for failure to fulfill obligations under the agreement is 0.3 percent for each day of delay. To calculate the penalty, the following calculations are carried out: 100,000 * 0.3% * 360 = 108,000. Thus, the debtor is obliged to pay a penalty, the amount of which increased over the year to 108 thousand rubles. However, the contract may provide for a clause that the penalty cannot exceed the amount stipulated by the contract. Then the debt will be 100 thousand rubles.
Mandatory interest
The agreement on the penalty can be made in the form of a separate document or spelled out in the form of a clause of the main contract. However, even if the penalty is not indicated by the parties, the creditor has the right to demand its payment. This obligation is paid by the debtor voluntarily or recovered on the basis of a court decision.
Pre-trial settlement
If the law establishes a claim or other procedure for resolving a dispute before a court proceeding, then this body will consider the relevant case only after following a certain order. Before you go to the arbitration court, you must submit a claim and wait a certain period. If no response is received during this time or a refusal is received, then only then the party has the right to apply to the judicial authority.For example, if the conditions were violated by the carrier, but the other party appealed to the court without first submitting a claim against it, the lawsuit will be left without consideration. This is explained by the fact that before filing a claim, it is necessary to submit a corresponding claim to the carrier. Thus it is, the plaintiff did not fulfill obligations in pre-trial peaceful resolution of the situation.
The claim is made in free form and signed by an authorized person. It should contain the following data:
- Indication of the debtor.
- Number of the main contract.
- Conditions that have been violated.
- Claim amount.
- References to legislation.
- The period that is given to the debtor to fulfill obligations on a voluntary basis.
- List of documents attached to the claim.
The claim is sent by registered letter with notification, or is handed orally against the receipt. A different transmission method may be used. The main thing is to fix the dispatch of the document, and, if possible, hand it to the debtor.
Securing obligations under a contract and law
Forfeit happens:
- contractual;
- legal.
In the first case, it is provided for in the contract by the parties themselves. It indicates the value, calculation and use. The parties may agree on an appropriate payment if the law provides for a penalty for default (under a loan agreement, for example), which does not suit the parties or there is no penalty at all. A legal penalty may be applied regardless of whether this obligation is provided for in the contract or not.
For example, such collateral is applied in the form of interest for the use of money by the second party to the contract. Even if this is not specified in the agreement, the court may decide to recover interest for using borrowed funds in case the debtor avoided returning it, withheld it in an unlawful way or delayed payment for another reason.
The amount of the penalty for the use of borrowed funds is established on the basis of the refinancing rate, which was valid at the location of the creditor at the time of fulfillment of obligations (if other interest is not specified either in the law or in the contract). Interest is paid for the entire time of using other people's money, counting from the last day of the period provided for by the contract to the actual payment or for less time if the relevant conditions are provided by law or agreement.
Currently, a low rate of refinancing of the Central Bank is set. To get interest on this basis, this item should be indicated in the contract and indicate higher interest.
When calculating the annual amount, it is considered to be 360 days, and the monthly one is 30. This is stated in paragraph 2 of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation of October 8, 1998, No. 13/14.
If the parties to the contract write down the clause on the refusal of the penalty, then this provision will be considered invalid. At the same time, the penalty is recovered at the initiative of the creditor. And he, in turn, may not require these funds.
Forfeit or interest
The creditor will not be able to collect at the same time interest for the use of other people's money and a certain amount of forfeit for failure to fulfill obligations under the contract. For one violation of Russian law provides for one measure of punishment. Therefore, one whose right has been violated, can recover funds on the selected basis. In one and the other case, he is not obliged to prove the fact of incurring losses for failure to fulfill the obligations of the other party. This is stated in paragraph 6 of the aforementioned RF Armed Forces and the Supreme Arbitration Court of the Russian Federation No. 13-14.
Change of size
It also happens that the law imposes a fine or fine, but the parties are not satisfied with their size. In this case, for example, the amount of the penalty for non-fulfillment of obligations under the service contract may be changed upwards. This obligation is called mixed, because it is present both in the law and in the agreement of the parties.However, a change in the direction of decreasing the amount of the penalty or penalty prescribed by law is prohibited.
Depending on the ratio with losses, the penalty is:
- credit;
- free kick;
- exceptional;
- alternative.
An exceptional penalty occurs when it has been recovered, but losses are not. If the losses are fully covered, and the amount is more than the established penalty, then it is called a penalty. In an alternative form, a penalty or loss coverage may be selected. A credit penalty is called when losses are compensated in that part which is not covered by this obligation. The following example will help you better understand this type of payment.
Example 2: what amount is taken into account?
The supplier paid a fine of two thousand rubles. for not delivering the goods in the right quantity. However, as a result of this, the buyer's losses amounted to 12 thousand rubles. Therefore, the recovery is carried out from the amount minus two thousand rubles. That is, the amount of the penalty for failure to fulfill obligations under the contract is calculated from 10 thousand rubles. However, the buyer in this case is obliged to prove that his losses amounted to 12 thousand rubles. As a rule, this obligation is recovered when the lender received a small amount, while real losses were much higher.
A responsibility
Forfeit is one of the measures of responsibility. This means that initially the guilt of one of the parties must be proved. However, the party that violated the terms of the contract is liable if it does not prove that it has not fulfilled its obligations due to an emergency or other similar circumstances. Such can not be attributed violations by the counterparties of the offender, the lack of appropriate goods or money from the offender. Moreover, even if there is guilt, the violator can be released from liability depending on certain circumstances.
In addition, the court may reduce the amount of the penalty for failure to fulfill obligations under the production contract (or any other type) if it is disproportionate to the consequences. Thus, even if the contract indicates a high percentage of the penalty, this does not mean that when the case is considered in court, the party will be obliged to pay it in full. This is one of the tools to combat abuses of penalties. The following example can be indicative in this regard.
Example 3: litigation
The company LLC “A” appealed to the arbitration court of the Moscow Oblast to recover a forfeit from OJSC “B”. The court recognized the requirements of "A" legitimate in accordance with Articles 330 and 331 of the Civil Code. However, on the basis of Art. 333 of the Civil Code of the Russian Federation the amount of the penalty was reduced. LLC “A” did not agree with the judge’s decision and appealed to the cassation instance with a demand that the payment be made at the established amount of the penalty for failure to fulfill obligations under the service contract.
After checking the decision of the arbitration court, the cassation court upheld it. This decision was explained as follows. The stated requirements of LLC “A” were recognized as legitimate, since according to Article 330 the debtor must pay a penalty in case of delay. According to Article 333, a court may reduce the amount of a penalty for failure to fulfill obligations under a service agreement if it is disproportionate to the consequences that arose after the violation. The corresponding decision was made on the basis of the considered principal amount of the debt, as well as the established penalty of a very high size. The court used the right provided for in paragraph 1 of Article 71 of the Arbitration Procedure Code. Evidence was evaluated through a comprehensive, objective and complete study. Therefore, the FAS did not find grounds for changing the decision of the Arbitration Court of the Moscow Region.
Conclusion
In certain situations, the contract or the law establishes a different amount of the penalty for failure to fulfill obligations under the contract.RFP is at the same time implemented through certain restrictions. For example, if the contract establishes an excessively high amount of forfeit, the court will be able to lower it.