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Calculation rules

The parties entering into contractual legal relations must know how to calculate the penalty under the agreement in the event of failure of one of the parties to fulfill its obligation.

Attention! First you need to know the following indicators that may be needed to calculate penalties:

• the amount of funds from which the penalty should subsequently be calculated (this amount can be either part of the funds contributed by the counterparty or the amount that was not paid);
• the amount of interest, which is established by agreement of the parties, applied in case of violation of obligations;
• the period of time for which the penalty is calculated.

If the above data is available, each party will be able to calculate the fine amounts.

When are penalties charged?

Often, when concluding agreements, their participants are subject to additional penalties in case of failure to fulfill their obligations. For example, if a person fails to timely pay interest when using someone else’s money, then such persons may be subject to a fine or penalty.

List of cases of imposing financial liability measures:

• untimely transfer by the developer of the facility for operation;
• untimely delivery of goods;
• violation of tax payment deadlines;
• violation of deadlines for transferring alimony;
• untimely payment of alimony;
• late payment of interest on the loan.

What formula is used to calculate

The penalty increases daily by the amount established by the refinancing rate of the Central Bank of the Russian Federation.

Attention! The rate is taken into account for each period of untimely fulfillment of an obligation:

P = (Z * D * SR) * 1/300,Where:

• Z – amount of unpaid funds;
• D – number of days of delay;
• SR – Central Bank rate.

Please note that the interest is not charged for the year, but for a specific period of delay.

Formula for calculating penalties under an equity participation agreement

For entrepreneurs and legal entities, there is the following formula for calculating penalties:N = Price as agreed*number of days overdue*Rate established by the Central Bank of the Russian Federation

For individuals there is the following formula:N = Cost under agreement*number of days of delay*Central Bank rate

An example of calculating the amount of a penalty when concluding an agreement on shared construction

When the cost of the object is $3 million, the number of days of delay is 100, and the Central Bank rate is 8%.

Penalty for individuals: 3000*100*8/100/150= 160 000

Penalty for individual entrepreneurs or organizations: 3000*100*8/100/300 = 80 000

At the refinancing rate

Important! The refinancing rate is the percentage of the Central Bank of the Russian Federation transferring loans to commercial banks. If this rate changes, then its data in the above formulas should be replaced.

At the bank rate for individuals

For individuals, the penalty is determined:

• in accordance with the law;
• in accordance with the provisions of the loan agreement

When the penalty is calculated on the basis of an agreement, the calculation is carried out as follows:

P = Overdue amount*% penalty*number of days/360.

Attention!

When a penalty is provided for by law:

P = Overdue*% of the Central Bank refinancing rate*number of days/360.

In case of bankruptcy on a loan

Based on the analysis of judicial practice, it follows that the arbitration court has the right to impose on a person the obligation to pay a penalty, but after the lapse of time he may be declared bankrupt.

Calculation of alimony

Financial debt is calculated from the date the debt arises until its repayment.

Remember!

• Penalties are calculated:
• in case of payment of alimony based on an agreement;

by decision of a judicial authority (its amount is 0.5% of the debt amount);

A statement of claim for the imposition of liability measures is filed at the place of residence of the plaintiff in the magistrate's court.

• The following are attached to the claim:
• method of calculating the fine;
• writ of execution on the basis of which alimony is calculated;

agreement (when alimony is paid voluntarily).

Please note that the bailiff cannot independently assign a fine. Its recovery occurs after a court decision is made. Watch the video.

How to calculate the penalty for late delivery of a house?

By salary

One of the responsibilities of the employer is to timely pay wages to individuals. When the payday falls on a holiday or weekend, payment must be made the day before.

Please note!

In the event of a delay in wages on the basis of labor legislation, the employer may be required to pay compensation, which is calculated using the following formula: number of days of delay*amount of debt*StB/100/300

The company's chief accountant or manager may be subject to a separate measure of responsibility.

Penalties are accrued daily until the day the obligation is fulfilled. In some types of legal relations, the amount of the collected penalty is determined by the law (for example, when it comes to legal relations related to the payment of insurance compensation under compulsory motor liability insurance).

Please note that when the law establishes that for certain types of legal relations the collection of a penalty is allowed, then it is collected even if it was not provided for by the agreement concluded by the parties.

When the procedure for collecting a penalty is not legally established, the parties independently determine the procedure for calculating it and the procedure for resolving the dispute.

When the parties have not provided for the possibility of imposing financial liability in the event of improper fulfillment of obligations or their non-fulfillment and its imposition is not provided for by law, then it is not subject to recovery from the violator.

Remember!

When considering a dispute, the court has the right to reduce the amount to be recovered.

Along with this, there is a list of disputes in which the court does not have the right to independently reduce the amount of the penalty (for example, when it comes to the accrual of penalties in connection with late payment of alimony).

Penalty under the contract

Depending on the legal relationship the parties entered into, penalties may be imposed on either one or both participants. Next, we will consider the most common cases of imposing a penalty.

Sales and purchases

The purchase and sale agreement may provide for a penalty for late delivery of the goods purchased by the buyer. The penalty is calculated based on the value of the goods to be transferred.

On the other hand, the buyer, in case of late payment for goods, may also be subject to financial penalties. The amount of the penalty is provided for in the agreement.

Supplies

Delivery is a type of legal relationship related to purchase and sale. In this regard, the rules established for purchase and sale agreements apply to such legal relations.

The only difference is the accrual of a penalty for late delivery of the next batch to the buyer.

Contract

Important! The penalty is payable by both the customer and the contractor.

In order to hold the contractor accountable, the agreement must provide for specific deadlines for the completion and delivery of the work. For this purpose, specific deadlines must be established in the contract.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues.

Loan

The possibility of charging a penalty is permitted by law. On the other hand, in order to calculate the amount of the financial penalty, it must be indicated by the parties in the agreement or receipt for the receipt of borrowed funds.

Equity participation

If the developer violates its obligations to deliver new residential premises on time, possible sanctions that are permissible for application are specified by law.

For each day of late delivery of residential premises, 1/300 of the refinancing rate is provided.

When the debtor is an individual, the penalties can be doubled. This means that the penalty amount is 1/150. The accrual base is the amount of the cost of the residential premises, which is specified in the construction agreement.

Calculation of penalties under Article 395 of the Civil Code

If borrowed funds are used (for example, in connection with a loan agreement), failure to repay them on time means the possibility of imposing financial sanctions on the debtor. The amount of interest to be paid is determined by agreement or by law.

An example of calculating a penalty under OSAGO 2016

Attention! The Federal Law “On Compulsory Civil Liability Insurance” states that the amount of the penalty in case of failure by the insurance company to pay timely insurance compensation is 1% of the amount to be paid.

Penalty due to late payment is associated with the following indicators:

• rates developed by the Central Bank;
• the sum of days of delay;
• the amount of unpaid funds.

Calculation example:

If the company’s debt is 50,000 rubles, 20 days overdue, the rate is 8.5.

The penalty is calculated as follows:

50*0.013 (1/75)*0.085*20=1.105 thousand rubles.

Determination of days of delay

To correctly calculate the amount of the penalty, you should know from what day the debtor became overdue. When the agreement stipulates that the fulfillment of the obligation must be carried out on a specific day, the period of delay begins to be calculated on the next day.

The parties may indicate in the agreement several days during which the obligation must be fulfilled by the party (usually working days). In this case, it is necessary to count the days provided for in the agreement. After the last day, the day of delay follows.

It also happens that the parties do not indicate specific deadlines in the agreement that are allocated for the fulfillment of obligations.

Remember!

• In this case, it is necessary to act in accordance with the mechanism developed by the legislator:
• the counterparty is sent a written request to fulfill the financial obligation;

the received request must be considered within no more than a week from the date of receipt of the document. The eighth day is the first day of delay.

The end of the period is the day on which the obligation was fulfilled. Remember that the period of delay includes all calendar days, including holidays and weekends.

Appeal to a judicial authority

Please note!

The statement of claim is filed with the court at the place of registration of the creditor, at the place where the agreement was concluded or its execution.

• This means that the creditor has the opportunity to go to court at a location other than the debtor’s location or residence.
• The claim must contain the following list of information:
• name of the judicial authority;
• information about the plaintiff indicating his contact information;
• information about the defendant;
• circumstances of the case;

a list of requirements presented by the applicant;

a list of documents that a person attaches as evidence of his position.

Remember that the statement of claim is drawn up in accordance with the number of persons involved in the process.

Receiving a penalty

In order for the obligated person to fulfill his obligation to pay funds, it is necessary to contact him with a pre-trial claim. It indicates on what basis the debt arose, the amount of the penalty and the procedure for paying it. It should be noted that filing a pre-trial claim is a mandatory procedure.

If the debtor ignores the received claim, then the creditor has the right to appeal to the court.

Since legal proceedings take a long period of time, it is better to resolve financial conflicts amicably.

Penalty interest agreed upon by the parties at the conclusion of the contract or established by law, which the debtor is obliged to pay in case of delay in payment, is called a penalty. To correctly calculate the penalty when filing a claim in court, sending a claim to the counterparty and further correctly reflecting the transaction in accounting documents, there is a special procedure for calculating and accounting for late payment penalties.

Contractual penalty

This means that the penalty (P) is agreed upon in advance by the parties to the business and is documented. It can be in the form of a certain amount or calculated as interest for each day of delay.

Formula for calculating penalties (P):

P = amount of debt * size P * number of days overdue / 100

Let's look at an example:

The company had to pay a debt of 5,000 rubles on January 31, 2017. The actual payment occurred on February 20, 2017. in the amount of 3,000 rubles, and 02/25/2017. another 2000 rubles were paid. At the end of the month, the creditor sends a calculation of the claim to the debtor, based on the size of P equal to 0.1%.

The debtor company will pay the creditor, in addition to the main current debt, the following amount of P:

1. 5000*0.1*20 days/100 = 100 rubles;
2. 2000*0.1*5 days/100= 10 rubles;
3. Total 110 rubles.

Legal penalty

If the contract does not stipulate liability for failure to fulfill monetary obligations, if late payment occurs, the concept of legal P () comes into force.

Note: according to this, the debtor, in case of delay, must pay either the contractual amount of the penalty or the legal amount, unless otherwise specified in the agreement of the parties.

Legal P is calculated at the refinancing rate of the Central Bank of Russia. The introduction of this rate is possible in the following cases:

• Calculation of fines and penalties for tax obligations (part of the rate for each day of non-payment);
• Payment by P for late payment of a loan or interest;
• When taxing a deposit in rubles with personal income tax, in the case where the interest rate is greater than the refinancing rate;
• Payment of compensation for delayed wages (more than a share of the refinancing rate approved on September 19, 2016 in the amount of 10%).

Rule for calculating penalties at the refinancing rate:

P = amount of debt * refinancing rate * Days of delay/100 * part of the refinancing rate.

It should be noted that when calculating P, the counting of days begins from the next day after the start of the delay, and ends with the day appointed for payment of the penalty.

If the rate changes during the payment calculation period, P is calculated separately for each of its values.

If it is difficult to calculate penalties or to save time, you can take advantage of the opportunity to calculate it using an online calculator.

Late payment of tax

The procedure for accrual and calculation of taxes is regulated by

When will the State Tax Administration accrue to the organization P:

• If the amount of tax transferred to the budget is underestimated;
• In case of late payment, taxes will be assessed.

Let's consider a general example of accrual in the case when the refinancing rate changed during the period of non-payment.

Input data:

• Amount not paid on time – 5000 rubles;
• The payment delay period was 30 days, of which 18 days – the refinancing rate was at 10.5%, and 12 days – 10%.

Example of calculating late payment penalties:

P = (5000 rubles x 10.5 percent/100/300 x 18 days)+(5000 rubles x 10 percent/100/300 x 12 days) = 31.5+20=51.5 rubles.

When determining the number of days of violation of payment terms, the enterprise needs to clarify the requirements of the local State Tax Inspectorate regarding the inclusion of the last day in the general period of payment delay, since only the first day of this period is precisely specified in the NKRF.

Late advances

Depending on the type of taxes, the procedure for calculating and paying taxes differs. Let’s consider only the specifics; otherwise, the procedure for calculating and paying is general:

• Unpaid advances on income tax - interest is accrued after 1 month from the beginning of the violation of the deadline;
• Unpaid advances on land tax - in addition to the standard accrual of P, legal entities and citizens of the Russian Federation are subject to penalties in the form of 20% of the debt. If the delay in payment was intentional, the fine is 40%;
• Unpaid advances on property tax - P is assessed by local tax authorities. If the owner of property subject to taxation has not received a notice of payment of tax and P at the beginning of the reporting period, he must contact the local State Tax Administration;
• Unpaid advances for transport tax - payment is made once a year to the local State Tax Administration, P is accrued after 3 months from the date of the violation. If the non-payment is intentional, an additional 30% penalty on the tax debt will be charged.

Enterprise accounting

In accounting, penalties are taken into account in expense accounts (to the budget), which are not subject to taxes.

The size of P does not affect changes in the tax base, so the temporary difference between tax and accounting accounting is not detected.

Legal subtleties

Penalties (Articles No. 72 and No. 75 of the NKRF) are not a measure of tax liability, but are intended to compensate for budget losses.

Late payment penalties cannot be suspended by applying for an investment tax credit.

For late payment, P is not charged in the following cases:

• From the date of seizure of the property of an individual (who is not an individual entrepreneur) until the day the proceeds are deposited into the state budget;
• When the State Tax Administration seizes the accounts, funds, and property of the taxpayer;
• If the arrears occurred after compliance with legal requirements regarding the payment procedure, and there is an official document confirming this;
• If the payer has surpluses remaining from the payment of previous amounts, fines and penalties, on the date of the required payment;
• If the payer’s existing tax surplus in the State Tax Tax Administration partially covers P, then the accrual occurs in an amount that is not covered by the overpayment.

Surplus payments accrued to the taxpayer can only be used in the following cases:

• To repay P accrued by the tax administration;
• To pay city, state and federal tax obligations.

The State Tax Administration has the right to forcibly collect P from the defaulter by seizing the amount of the debt on funds in banks or on his other property.

Briefly: Penalties are one of the ways to calculate penalties under a contract. Its peculiarity is that the amount of payment increases in proportion to the time during which one of the parties does not fulfill its obligations. The calculation procedure is established by agreement and by law.

Details

Penalty is the most common type of security for contractual obligations. According to the method of calculation, it is divided into fines and penalties. The first option is a one-time payment, usually set as a fixed amount from the value of the transaction or debt. In the second, it is indicated as a percentage of the agreed amount for the entire period of non-fulfillment of obligations. Let's look at how to calculate penalties under the contract and according to the law.

Formula selection

The amount of penalty payable is calculated as:

base amount × number of days overdue × interest rate

There are two types of penalties.

Negotiable- determined by written agreement of the parties. If there is no condition: for each day of the period of non-payment (other violation), then this will be a fine. It can only be collected once.

Example 1.

The supplier agreed to supply the store with furniture worth 340 thousand rubles by May 20, 2015. The recipient must pay for the goods immediately upon receipt. There is a condition: penalties under the contract - 0.2% per day of the total cost of the goods including VAT. The order was delivered on time, the money was transferred on June 10, 2015.

340,000 × 21 × 0.002 ꞊ 14280.00 rubles

Legal- established by law for certain types of obligations. The fine is often determined as a percentage of the minimum wage, and penalties are calculated at the refinancing rate of the Central Bank of the Russian Federation. Applies when the contract does not specify the procedure for determining the penalty. For example, the law on the procurement of agricultural products in case of delay in payment provides for the payment of an additional amount - 2% of the amount of debt for each day, and if the period is more than 30 days - 3%. It is calculated as in the previously given example.

The formula for the Central Bank rate has its own peculiarities.

Example 2.

Let us assume that when concluding a transaction, the parties stipulated that if the deadlines are violated, a penalty will be paid for each day of delay: the calculation is based on the amount of debt at the Central Bank rate established on the date of signing the documents. How to calculate penalties payable? Let's consider two cases.

Additionally. The penalty applies to any party to the contract. However, the seller of the goods is obliged to pay VAT on the amount received. This is the position of the Ministry of Finance (letter No. 03-07-11/214, 08/09/2011), the Federal Tax Service (letter No. AS-4-3/12941, 08/09/2011). It is being challenged in the courts, and the practice is developing in favor of taxpayers. But, if you are not ready to defend your interests, it is easier to include penalties in the tax base.

Lyudmila Poberezhnykh, 2015-08-26

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Calculation of penalties

What is a penalty?

Before calculating penalties, let's figure out what a penalty is?

A penalty is a type of penalty, a penalty applied to a party that has delayed the fulfillment of financial obligations, calculated as a percentage per day of delay of the unpaid amount.

How does a penalty differ from a penalty and a fine?

It is established by law that a penalty, a fine, including a penalty, is the amount of money that the debtor must pay to the claimant in the event of a delay in fulfilling an obligation or other improper fulfillment.

Consequently, from the point of view of the law, a penalty, a penalty and a fine have no differences from each other.

But when signing contracts and executing them, the parties usually attach different meanings to these concepts. As we have already indicated above, Penalty refers to a specific amount of money, determined as a percentage on the amount of the unfulfilled obligation and its size is calculated depending on the number of days the debt is overdue. A a fine is a fixed amount of money to be paid upon certain breach of contract.

Is it possible to establish a large penalty in the contract?

The contract can establish a penalty of any size, but it should be remembered that an excessively high penalty can be reduced in court.

Is it possible to reduce the fine?

The amount of the penalty can be reduced. In particular Art. 333 of the Civil Code of the Russian Federation indicates this possibility.

And the established practice of arbitration courts and the clarifications in force for courts confirm the courts’ readiness to reduce high penalties. The interest is usually set at twice the refinancing rate.

Is the creditor required to prove the existence of losses in order to collect penalties?

The creditor is not required to prove the existence of losses resulting from violation of the obligation. This rule is enshrined in law. The burden of proving the absence of harm falls entirely on the debtor.

What are penalties at the refinancing rate?

The amount of penalties for late obligations may be established in the contract. If the parties have not agreed on the issue of liability, then the provisions of the law apply.

The law establishes that interest is charged for withholding someone else’s money, evading return and other violation of obligations. The amount of interest is equal to the refinancing rate, which is set by the Central Bank of the Russian Federation. The issue of calculating penalties at the refinancing rate is discussed in detail in the article “Calculation of penalties at the refinancing rate”

Is it possible to conclude a separate agreement on the payment of penalties?

An agreement to pay a penalty can be concluded separately from the contract. Such an agreement is concluded in the same form as the main agreement (if the agreement was signed in written (not notarized) form, then the agreement to pay the penalty is signed in writing). In this case it will be legitimate.

If the payment amount is not enough to pay off the entire debt, what is paid off first: the principal debt or the penalty?

If the amount is not enough to repay the entire debt and penalties, then the penalties are repaid first, then the principal amount of the debt. If the creditor has incurred costs associated with the fulfillment of the obligation by the debtor, then the costs must be repaid first. A different procedure can only be changed by the provisions of the agreement signed by the parties.

Can a judge independently, on his own initiative, reduce the amount of the penalty?

The court cannot reduce the amount of the penalty on its own initiative.

Calculation of the amount of penalties and other penalties under the contract

A written statement from the debtor is required, which provides arguments confirming the possibility of reducing the penalty. This rule is the result of established judicial practice and is enshrined in the clarifications of the Supreme Arbitration Court of the Russian Federation.

How to calculate the penalty?

Formula for calculating penalties.

Penalty = amount of debt * number of days of delay * % of penalty per day of delay.

Example of penalty calculation.

The amount of debt is 1 million rubles.

The number of overdue days is 9 (payment date is 02/03/2014, the delay begins on 02/04/2014, the debt is repaid on 02/12/2014).

The penalty provided for in the contract is 0.5% per day.

Thus, penalty = 1 million rubles. * 9 days of delay * 0.5% = 45,000 rub.

Calculation of penalties at the refinancing rate.

The penalty at the double refinancing rate is calculated when the court is asked to reduce the contractual penalty to its size (currently 8.25% * 2).

If the penalty is calculated at the double refinancing rate, then the formula will be as follows:

amount of debt * number of days overdue * refinancing rate * 2 / 365 days.

At the same time, in contrast to the above calculation of penalties, one must remember the rule: for any month the number of days is thirty, more details in the article “Calculation of penalties at the refinancing rate.”

A one-time refinancing rate is applied when the parties completely forgot to provide for the collection of a penalty.

Online calculator for calculating penalties

How to file a penalty

Signing an agreement for the provision of services or the purchase and sale of goods is an integral part of business and everyday life.

When concluding a contract with a contractor for the construction of a house, you agree on the deadline for the completion of the project. When drawing up a purchase and sale agreement with a goods supplier, you also fix the terms, quantity and quality of the goods. And one of the clauses of any contract must be a clause on the payment of penalties by the party that has not fulfilled its obligations under the contract. Otherwise, losses cannot be compensated even through court.

What you need to know when drawing up a liquidated damages agreement

If circumstances arise in which you have the right under the contract to demand a penalty, you must first write a claim to the other party to the contract demanding payment of the penalty.

In your complaint, you must describe in detail the basis for your request.

Be sure to indicate the amount of the penalty with a detailed calculation.

Make sure that you receive notification of receipt of the claim by the other party to the contract.

The penalty may be a fixed amount or a percentage of the contract amount. This condition is negotiated at the stage of concluding the contract and is fixed in an additional agreement to the contract.

An agreement on liquidated damages must always be in writing, regardless of any other oral agreements. If the written requirement is not met, the liquidated damages agreement is considered invalid.

The agreement on the penalty does not need to be certified by a notary, unlike the main obligations.

The request for payment of the penalty must be made before the principal amount under the contract is paid. If you do not do this, you lose your right to such a claim.

There are standard forms for filing penalties and claims with a clear list of all items that you must fill out, sign and send to the other party to the contract.

The form must contain at least the following items:

• To: full name of the organization
• mailing address
• TIN of the entity to which the claim is addressed
• Name and position of the manager From:
• full name of the organization
• mailing address
• TIN of the subject, applicant
• Name and position of the manager Claim - reason for the claim
• amount of claim, cost of one unit of goods, penalty
• link to contract
• description of goods, quantity, terms
• description of payment terms
• full calculation of the penalty

Attach all supporting documents to the form, such as a contract, invoices, invoices and other documents related to the case.

When you buy a product in a store, you also enter into a kind of contract for the purchase and sale of goods with the seller. If the product turns out to be of poor quality in accordance with the Law “On Protection of Consumer Rights”, you have the right to demand a penalty.

But each type of product has its own rules and exceptions.

There is a category of goods for which you can make a claim within a certain period (for example, 2 years) if the product’s expiration date has not expired. To do this, you need to conduct an independent examination and obtain a conclusion. With this conclusion, you can contact the store and demand a refund.

If you send a product for repair under warranty, but it is not repaired within the promised time frame, you have the right to demand a penalty for failure to meet the deadlines.

Tip 1: How to calculate late payment fees

According to the law, the amount of the penalty can be 1% of the cost of the goods for each day of delay. Do not forget to write the claim in two copies and provide both to the repair shop or service center - on one of the copies the service workers must put a mark indicating that they received your claim. The money must be paid to you within 10 days. If this does not happen, you have the right to go to court to recover.

Number of crimes in Russia

Penalty under the contract

A penalty is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of obligations - in particular, in case of delay. Based on the grounds for the occurrence of a penalty, legal and contractual penalties are distinguished.

The right to collect a legal penalty occurs regardless of the will of the counterparties.

How to calculate rental penalties correctly

The peculiarity of a penalty established by law is that it is designed to ensure an obligation that may arise in the future. Such a penalty is provided for by law in certain cases - for example, if alimony is not paid, it cannot be waived or reduced in size.

What is a contractual penalty?

A contractual penalty (contractual, voluntary) can be established by mutual agreement of the parties in accordance with their good will for any violation of obligations. The legislation gives the parties freedom in determining violations that may result in the collection of a penalty, in establishing the amount of the penalty, the procedure for calculating it, etc.

e. When establishing such a penalty, it is necessary to follow the requirements of the Civil Code regarding the written form of the agreement on compensation of the penalty (regardless of the form of the main obligation) and proportionality to the consequences of the alleged violation (otherwise, the court may significantly reduce its amount). In the agreement, the penalty can be called a fine or penalty, and can be expressed as a percentage or be a fixed amount.

If a creditor wants to collect a penalty under a contract, he does not have to prove that losses were caused to him. It is the penalty under the contract that most fully protects the interests of the parties and reflects the features of certain obligatory legal relations.

The procedure for collecting penalties under the contract

To begin with, you can try to collect the penalty on a voluntary basis. To do this, the amount is calculated and a written claim is drawn up against the debtor. In the claim, in addition to the amount of the penalty, it is necessary to provide the debtor with a deadline for payment. If the obligation to pay the penalty is not fulfilled, the issue can be resolved in court by filing a statement of claim to collect a penalty for late delivery of goods.

A claim for the recovery of a penalty is filed in writing to the magistrate, district or arbitration court (depending on the circumstances) at the place of residence of one of the parties participating in the case. The application must indicate the following information: name of the court; surname, name, patronymic of the plaintiff (name of the organization), his place of residence, as well as surname, name, patronymic of the representative and his place of residence, if the statement of claim is filed in court by the representative; surname, name, patronymic of the defendant (name of organization), his place of residence; the essence of the violation of the rights and legitimate interests of the applicant and his petition; grounds for presenting the plaintiff’s claims, evidence that confirms these grounds; information about pre-trial proceedings; a list of documents attached to the statement of claim, their copies; copies of the statement of claim by the number of defendants and third parties; a document confirming payment of the state duty in accordance with Article 333.36 of the Tax Code of the Russian Federation; signature of the plaintiff or his representative.

It is better to entrust the preparation of documents such as a claim and a statement of claim for the recovery of a penalty under a contract to the specialists of our company, who have many years of experience in preparing procedural documents.

Professional legal assistance in collecting penalties under a contract

In cases where one of the parties to the agreement does not fulfill its obligations within the period specified in the agreement, the other party has the right to collect a penalty under this agreement. In our article we will look at the concept of a penalty, when it can arise and how to calculate its size.

Legislative regulation of the issue

Legislative regulation of the issue is carried out primarily by the Civil Code of the Russian Federation, in particular:

• introduces the concept of penalties;
• establishes the deadline within which obligations must be fulfilled;
• describes the responsibility of the parties for improper fulfillment of their obligations.

The concept of penalties

A penalty is a certain amount of money that one party is obliged to pay to the other party in case of untimely fulfillment of obligations under the contract. This definition is given by the Civil Code of the Russian Federation in Article 330. To understand what a penalty is, consider an example.

Example. Individual entrepreneur Vasilyev A.A. entered into an agreement with Khleb LLC for the supply of flour to this organization. According to the contract, upon shipment of flour, Khleb LLC is required to pay for the goods within seven days. The same agreement states that if payment is not made within 7 days, a penalty will be charged under the agreement for each day of delay in the amount of 1% of the debt amount. If the LLC does not pay for the goods within 7 days, then along with the amount of the debt, it must pay the amount of the penalty.

Calculation of penalties under the contract

The amount of penalties for improper execution of a contract is usually described in the contract, which is concluded by the parties before the start of cooperation. The agreement typically describes the following sanctions:

1. The percentage expression of the penalty for failure to fulfill obligations. For example, the agreement may state the following: “In the event of failure to fulfill obligations under this agreement, the party that violated the agreement is obliged to pay the other party a penalty in the amount of 1% of the debt amount for each day of delay in fulfilling obligations.”
2. The fine is fixed. In this case, the contract specifies a certain amount that the party that violated the obligations will have to pay.

Important! As a rule, each agreement concluded by the parties at the beginning of cooperation contains a clause on the amount of the penalty.

Calculation of penalties under Russian legislation

If the agreement concluded between the parties does not indicate the amount of penalties and interest, then this amount can be determined in accordance with the Civil Code of the Russian Federation. Article 395 of the Civil Code of the Russian Federation specifies the rule for calculating the amount of the penalty - if there is no clause in the agreement between the parties on its amount, the amount must be calculated based on the refinancing rate that was in effect during the period of violation of obligations.

Important! The refinancing rate currently in force in the Russian Federation is 7.25% per annum. This amount is valid from March 26, 2018.

Example. Individual entrepreneur Morozov S.S. entered into an agreement with Russian Product LLC for the supply of equipment worth 1 million rubles to this organization. According to the contract, upon shipment of equipment, Russian Product LLC is required to pay for it within 3 days. This agreement does not specify the amount of the penalty. Russian Product LLC paid for the equipment only 10 days after delivery. Thus, delaying payment by 7 days.

Payment deadline

The deadline for paying the penalty may be described in the contract. If the contract does not indicate the payment period, then you need to turn to Russian legislation. states that the deadline for fulfilling obligations is seven days from the date of presentation of the creditor’s claim. Thus, if a party asserts its rights to recover a penalty in the form of a Claim, then the other party must fulfill the obligation within 7 days.

The amount of the penalty for failure to fulfill obligations under the contract can be determined both by agreement of the parties and by law. In our article we will study how the amount of a penalty for violation of contractual obligations can be established and how the collection of a penalty and the application of other liability measures can be combined with each other.

Penalties for violation of contract terms

The Civil Code of the Russian Federation provides for the following types of consequences of violation of contractual obligations:

• compensation for losses (Article 393-393.1 of the Civil Code of the Russian Federation);
• payment of a penalty (Article 394 of the Civil Code of the Russian Federation);
• payment of interest for the use of other people's money (Article 395 of the Civil Code of the Russian Federation).

IMPORTANT! It must be remembered that the application of these measures, according to the general principle, does not relieve the relevant party from fulfilling the violated obligation (clause 1 of Article 396 of the Civil Code of the Russian Federation). At the same time, the imposition of such measures in a situation where their purpose is associated with non-fulfillment of an obligation, on the contrary, relieves the debtor of the need to fulfill it.

Terms such as fines and penalties for violation of contract terms, in the Civil Code of the Russian Federation are used as synonyms for the term “penalty”. The differences between them are that a fine is the amount of the penalty expressed in a fixed amount, and penalties are a periodically accrued payment (clause 60 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 24, 2016 No. 7, hereinafter referred to as PPVS No. 7).

Contractual and legal penalty

The procedure for calculating the penalty is usually immediately fixed in the contract, although it must be remembered that for non-compliance with obligations in specific areas of legal relations, special rules of law may also regulate certain amounts of the penalty.

Examples of situations where its size is fixed at the legislative level are the following:

• Failure by the seller to comply with the deadlines for fulfilling consumer requirements (clause 1 of Article 23 of the Law of the Russian Federation “On the Protection of Consumer Rights” dated 02/07/1992 No. 2300-I, hereinafter referred to as the Law of the Russian Federation), transfer of prepaid goods (clause 2 of Article 23 of the Law of the Russian Federation), execution of work (Clause 5, Article 28 of the PZPP), fulfillment of individual consumer requirements (Clause 3, Article 31 of the PZPP), etc. This issue is discussed in more detail in our other article - Penalty under the law on the protection of consumer rights.
• Delay in payment on a bill of exchange (Article 3 of the Law “On Promissory Notes and Bills of Exchange” dated 03/11/1997 No. 48-FZ, subparagraph 4, paragraph 48 of the regulation “On Promissory Notes and Bills of Exchange”, approved by Resolution of the USSR Central Executive Committee dated 08/07/1937 No. 104/1341).
• Failure by the insurer to comply with the deadline for returning the insurance premium to the policyholder (Clause 4, Article 16.1 of the Law “On Compulsory Insurance ...” dated April 25, 2002 No. 40-FZ).
• Failure to comply with the deadlines for making payments by its participant determined by the agreement for participation in shared construction (Clause 6, Article 5 of the Law “On Participation in Shared Construction...” dated December 30, 2004 No. 214-FZ), etc.

Minimum and maximum amounts of penalties

IMPORTANT! If the amount of the penalty is regulated at the legislative level, then by virtue of clause 2 of Art. 332 of the Civil Code of the Russian Federation, it cannot be reduced by a pre-concluded agreement of the parties, but it can be increased if such an increase is not prohibited by the legislator (clause 61 of PPVS No. 7).

Thus, the law allows the parties in some situations to establish a penalty in a different amount compared to what is regulated by law. However, in any case, its final size must fit within the limits established by law.

With this in mind, consider the following basic situations as an example:

• The amount of the penalty is strictly regulated by law. For example, according to paragraph 9 of Art. 13 of the Law “On Energy Saving...” dated November 23, 2009 No. 261-FZ, the penalty for delay by the responsible organization in fulfilling the obligation to install, replace, operate metering devices is 1/300 of the refinancing rate of the Central Bank of the Russian Federation, relevant on the date of fulfillment of the obligation. In this case, the maximum amount of the penalty is limited to the cost of performing the work under the contract.
• The minimum amount of a legal penalty may be changed by agreement. For example, the minimum amount of the penalty for delaying the completion of work in accordance with clause 5 of Art. 28 The PPA is 3% of the price of work under the contract, however, the law allows for a higher amount to be established by agreement of the parties. The upper limit of the amount of the penalty allowed for collection is equal to the price of a separate type of work execution.
• The maximum amount of the penalty is limited by the contract. For example, the parties agreed that its maximum amount cannot exceed 10% of the debt amount. In this situation, only the ratio of the amount of debt and the amount of the penalty will matter. The duration of the violation does not play a role (for example, the resolution of the Federal Antimonopoly Service of the West Siberian District dated October 28, 2013 in case No. A75-7720/2012).

On the collection of penalties and interest for the use of other people's funds

Clause 4 art. 395 of the Civil Code of the Russian Federation stipulates that unless otherwise stated in the agreement of the parties or the rules of law, then if there is a penalty clause in the contract, interest will not be collected.

If the law or agreement of the parties regulates a penalty for non-compliance with a monetary obligation, then the provisions of paragraph 1 of Art. 395 of the Civil Code of the Russian Federation are not applicable. In this situation, the stipulated penalty is collected, and not the named interest (clause 42 of PPVS No. 7).

The courts, having established the inconsistency of the method of protecting the right chosen by the party to the dispute with the goals of its restoration, may, on their own initiative, re-qualify the claim for the recovery of interest under Art. 395 of the Civil Code of the Russian Federation in a requirement to collect a penalty (if there is a provision for it in the disputed agreement). For example, the resolution of the 17th AAS dated December 7, 2016 in case No. A50-15233/2016.

The same applies to situations where the penalty is not provided for by agreement of the parties, but is regulated by law (for example, paragraph 10, paragraph 2, article 37 of the Law “On Electric Power Industry” dated March 26, 2003 No. 35-FZ, etc.). So, the fact of incorrect determination of the measure of liability for failure to fulfill contractual obligations is not in itself a basis for refusing a claim (for example, the decision of the Autonomous Okrug of Khanty-Mansi Autonomous Okrug of 12/08/2016 in case No. A75-13484/2016).

IMPORTANT! Payment provided for in Art. 317.1 of the Civil Code of the Russian Federation, interest is a reward for the use of provided money, and not a measure of liability for violation of obligations under the contract.

In this regard, when considering a claim for the collection of interest, the court must initially find out whether the plaintiff requires the collection of fees for the use of his money or the application of liability for violation of the contract by the other party. Accrual of interest from the beginning of the delay under Art. 395 of the Civil Code of the Russian Federation does not affect the calculation of interest under Art. 317.1 of the Civil Code of the Russian Federation (clause 53 PPVS No. 7).

Calculation of the amount of the penalty

The basic principles for calculating penalties are as follows:

• The amount is accrued before the fulfillment of the obligation. In this case, the day on which the obligation was fulfilled is also included in the billing period (clause 65 of PPVS No. 7). In this regard, it should be taken into account that the amount of the penalty specified in the court decision is not final and is relevant only at the time the court makes such a decision. Its further accrual (in the absence of a maximum limit or a court decision to reduce it to a certain amount) continues at the stage of enforcement proceedings - until the obligation is fulfilled.
• If the law or agreement regulates the deadline during which it can be accrued, or its maximum amount, the calculation is made until the specified limits are reached.
• Unless otherwise established, in the event of termination of the contract upon termination of the obligation, the calculation of the penalty also ends at this moment (clause 66 of PPVS No. 7). It should be noted that the expiration of the agreement of the parties does not in itself mean the termination of all obligations under it, including the payment of a penalty.
• If the contract provides for a penalty for failure to fulfill obligations related to the completion of the main obligation, then the condition of the penalty remains in force even after termination of the main obligation (clause 67 of PPVS No. 7).

IMPORTANT! If the parties provided for the fulfillment of obligations in parts, then in connection with this the penalty should not be calculated from the entire amount of the contract, but only from the cost of those parts in respect of which there was a delay (see the definition of the Supreme Court of the Russian Federation dated October 6, 2016 No. 305-ES16- 7657).

Reducing penalties: basic rules

When the amount of the penalty obviously does not correspond to the scale of the resulting consequences of non-compliance with contractual obligations, the court can reduce its size (clause 1 of Article 333 of the Civil Code of the Russian Federation).

At the same time, the courts indicate that the assessment of the penalty for its disproportionateness to the consequences is carried out according to the internal conviction of the court, taking into account the circumstances of each specific case, since clear criteria for this are not provided for by law (see the decision of the Avtozavodsky District Court of Tolyatti dated October 17, 2016 on case No. 2-11784/2016).

The burden of proving circumstances that may serve as grounds for reducing the penalty rests with the party applying for such a reduction (see the resolution of the 8th AAC dated December 27, 2016 in case No. A46-7479/2016).

In exercising this power, the courts are not constrained by the terms of the agreement on the maximum or minimum amount of the penalty (clause 70 of PPVS No. 7). If the penalty, according to the terms of the contract, consists of a fine and penalties, then its proportionality to the resulting consequences is assessed on the basis of the total amount of such a fine and penalties (clause 80 of PPVS No. 7).

Reasons for reducing the penalty

The grounds for reducing the amount of the penalty may be, for example, the following:

• a significant excess of the amount of the penalty over the amount of damage (for example, the decision of the Oktyabrsky District Court of Barnaul dated May 31, 2016 in case No. 2-1040/16);
• excessively high percentage of penalties;
• short duration of non-fulfillment of the obligation (see the decision of the Kopeysky City Court of the Chelyabinsk Region dated October 12, 2016 in case No. 2-2940/2016), etc.

The following arguments of the debtor cannot in themselves be accepted as grounds for reducing the penalty (paragraph 4 of clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 22, 2011 No. 81, hereinafter referred to as PPVAS No. 81):

• about his difficult financial situation:
• violation of obligations to the debtor himself by his counterparties;
• the existence of debt obligations to other persons;
• seizure of his property;
• failure to provide financial support from the budget;
• return of the amount of debt as of the date of consideration of the dispute;
• the defendant performs socially significant functions;
• the existence of the defendant’s obligation to pay interest for the use of funds, etc.

The courts note that the argument that the creditor has no damage (or lack of proof of its infliction) caused by the other party’s violation of its obligations under the contract cannot be considered as a basis for reducing the penalty (see the resolution of the 8th AAC dated December 15, 2016 in case No. A81-3174/2016).

Although the creditor is not obliged to prove the occurrence of losses in connection with the improper fulfillment of the obligation by the second party, he has the right to present to the court evidence of the consequences of similar violations of the obligation for him (clause 74 of the PPVS No. 7).

Reducing penalties on the initiative of the court - is this possible?

A reduction in the penalty, the payment of which is entrusted to the business entity, is possible only if there is a corresponding request from such a business entity (clause 71 of PPVS No. 7). The application form can be any.

In particular, these provisions are applicable in situations where disputes are being resolved regarding the possibility of reducing penalties for failure to fulfill obligations under loan agreements, to which citizens are parties (see Constitutional Court definitions No. 6-O and No. 7-O dated January 15, 2015) .

For comparison: the reduction of the penalty, when the debtor is a person not engaged in income-generating activities, the court is entitled to implement, including on its own initiative, i.e., even in the absence of a petition from the defendant, if a clear disproportion between the penalty and the resulting consequences of the violation is revealed contractual obligations.

As you can see, at the moment the legislator and the law enforcer distinguish between disputes about reducing the amount of penalties with the participation of subjects of entrepreneurial and other income-generating activities and with the participation of persons not engaged in such activities (cf. paragraph 2, paragraph 1 of PPVAS No. 81 and paragraph 71 of PPVS No. 7).

Fine and penalties for violation of contract terms: how to formulate

The agreement on penalties must be concluded in writing, regardless of the form in which the main obligation is expressed. Otherwise, such an agreement will be considered void (clause 63 of the PPVS No. 7).

If a legal penalty is provided for failure to fulfill obligations (clause 2 of Article 332 of the Civil Code of the Russian Federation), there is no need to introduce a similar provision into the contract, except in cases where the parties want to increase the size or limit the maximum amount of such a penalty.

The agreement on penalties can be drawn up as a separate document or included in the content of the main agreement.

As an option for wording the terms of the contract on a penalty, you can use the following construction: “In case of delay (indicate the type of obligation of the party, the party in respect of which the obligations were violated) has the right to demand from (indicate the party that violated the obligation) to pay a penalty in the amount of (indicate percentage or fixed amount) from the amount of debt for each day of delay”, etc.

IMPORTANT! Wording on the amount of the penalty, on the basis of which the specified measure can be interpreted as an element of pricing (for example, “if the delivery of goods is delayed by more than 30 days, the original price of the goods increases by 5%,” etc.), may entail certain tax consequences, for example, charging VAT on the amount of such a fine (see letter of the Ministry of Finance of Russia dated April 1, 2014 No. 03-08-05/14440).

Thus, a penalty is one of the measures to ensure the fulfillment of contractual obligations. The amount of the penalty can be determined by law or contract. In situations where the amount of the penalty is established at the legislative level, the parties may, by agreement, increase its amount, unless this is prohibited by law. The amount of the penalty for collection may be reduced by the court according to the rules of Art. 333 Civil Code of the Russian Federation.