Civil Code, N 51-FZ | Art. 395 of the Civil Code of the Russian Federation

Article 395 of the Civil Code of the Russian Federation. Liability for failure to fulfill a monetary obligation (current version)

1. In cases of illegal retention of funds, evasion of their return, other delay in their payment, interest on the amount of the debt shall be paid. The interest rate is determined key rate Bank of Russia operating in the relevant periods. These rules apply unless a different amount of interest is established by law or by agreement.

2. If the losses caused to the creditor by the unlawful use of his in cash, exceed the amount of interest due to him on the basis of paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in excess of this amount.

3. Interest for the use of other people's funds shall be charged on the day the amount of these funds is paid to the creditor, unless the law, other legal acts or the agreement does not establish a shorter period for calculating interest.

4. In the event that an agreement of the parties provides for a penalty for non-fulfillment or improper fulfillment of a monetary obligation, the interest provided for in this article shall not be recoverable, unless otherwise provided by law or the contract.

5. Calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled in the course of implementation by the parties entrepreneurial activity, the use of compound interest is not allowed, unless otherwise provided by law or contract.

6. If the amount of interest payable is clearly disproportionate to the consequences of the breach of obligation, the court, at the request of the debtor, has the right to reduce the interest provided for by the agreement, but not less than to the amount determined on the basis of the rate specified in paragraph 1 of this article.

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Commentary on Art. 395 of the Civil Code of the Russian Federation

Judicial practice under Article 395 of the Civil Code of the Russian Federation:

• Decision of the Supreme Court: Ruling N 302-ES17-13872, Judicial Collegium for Economic Disputes, cassation

  Having checked and corrected the calculation of the penalty presented by the company, the courts partially satisfied the claim, refusing to collect interest under Articles 317.1 and 395 of the Civil Code Russian Federation. The district court agreed with the findings of the trial and appellate courts...

• Decision of the Supreme Court: Ruling N 305-ES17-10359, Judicial Collegium for Economic Disputes, cassation

  The partnership filed a requirement to apply to the Security Service liability for failure to fulfill a monetary obligation in the form of recovery, according to the rules of paragraph 1 of Article 395 of the Civil Code of the Russian Federation, of interest for the use of other people's funds accrued on the amount of the debt incurred by the defendant to pay for the maintenance and repair of common property for the period from January 2013 to November 2014...

• Decision of the Supreme Court: Ruling N 309-ES17-7211, Judicial Collegium for Economic Disputes, cassation

  The Court of Appeal, having checked the legality and validity of the decision within the limits of the arguments of the appeal, agreed with the conclusions of the court that there were no grounds for collecting interest accrued under Article 395 of the Civil Code of the Russian Federation. Repealing the judicial acts of the courts of the first and appeal instances, the district court indicated that the company is a debtor, which, on the basis of judicial acts, has a monetary civil law obligation, for the delay in the performance of which, in accordance with Article 395 of the Civil Code of the Russian Federation, interest can be accrued. Meanwhile, the district court did not take into account the following ...

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For the convenience of persons interested in the calculation of interest under Art. 395 of the Civil Code of the Russian Federation, we have developed a calculator for calculating interest for using other people's funds, in which interest rates change automatically. Now, in order to correctly calculate the amount of interest, you will only need to enter the amount of the debt, the period of delay and the location of the creditor. Using the calculator on the website of the Lex Group of Law Companies, you can be sure that interest is calculated correctly according to the refinancing rate of the Central Bank of the Russian Federation. Rates and calculator formulas for online calculation are updated in a timely manner.

When collecting interest under Article 395 of the Civil Code of the Russian Federation, it is necessary to bear in mind the following.

If your counterparty does not pay the debt, you have the opportunity to recover from him, in addition to the principal debt, a penalty for violation of payment terms. However, the possibility of recovery and the amount of the penalty are not always determined by the contract. Moreover, the parties may generally be in non-contractual relations, if, for example, we are talking about unjust enrichment. Is it possible to apply any other penalties to the debtor?

The answer to this question is contained in Article 395 of the Civil Code of the Russian Federation, according to which the creditor has the right to collect from the debtor, in addition to the principal debt, interest for the use of other people's funds.

At the same time, it is important for the creditor to take into account that interest for the use of other people's funds can be collected on a daily basis. actual payment debt. In case of collection of interest in court, the creditor has the right to file a claim for the collection of interest in a firm sum of money, calculated on the day of the decision, as well as interest for the period from the day following the day of the decision to the day the debt is actually paid. Moreover, the recovery of a contractual penalty and interest for the use of other people's funds for the same period is unacceptable.

The amount of interest is determined by existing in the place of residence of the creditor or, if the creditor is entity, at its location published by the Bank of Russia and taking place in the corresponding periods, the average bank interest rates on deposits individuals.

It should also be noted that such a rule for calculating interest for the use of other people's funds is valid only from 06/01/2015. Until that time, the amount of interest was determined by the existing one at the place of residence of the creditor, and if the creditor is a legal entity, at its location discount rate bank interest.

Thus, we draw your attention to the fact that at present the calculation of interest under Article 395 of the Civil Code of the Russian Federation has become much more complicated. In order to calculate the amount of interest, it is necessary to take the average bank interest rates on deposits of individuals separately for different federal districts. It should also be taken into account that the rates change at least once a month, therefore, the lender needs to constantly monitor in order to determine what interest rate should be applied in a particular period of delay.

At the rate of the Central Bank online from latest changes 2019

This calculator will help calculate the penalty for late payment of the debt. This penalty interest is calculated from the date when the debtor was obliged to make payment until the date of actual payment of the debt or presentation of claims in court. It can be used in case of violation of the terms of payment of funds under any monetary contractual obligations, contracts, agreements, or in case of untimely execution of a court decision.

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	Clear Printable version Calculation of interest for the use of other people's funds under Article 395 of the Civil Code of the Russian Federation For the amount owed: For currency, the calculator independently determines the interest rate only from 06/01/2015. Specify which interest rate to apply for the period up to 06/01/2015: Calculation of interest on a monetary obligation under Art. 317.1 of the Civil Code of the Russian Federation For the amount owed: From to (days): p × × / = Entered as the first day of delay. That is, the last day of the due date falls on a weekend. But according to Art. 193 of the Civil Code of the Russian Federation, if the last day of the term falls on a non-working day, the expiration day of the term is the next working day following it. The next business day is . And the first day of delay, respectively, (Article 191 of the Civil Code of the Russian Federation). Specify as the first day of delay? Yes The calculation result of this calculator is for reference only and is not official information. Liability for failure to fulfill a monetary obligation 1. In cases of illegal retention of funds, evasion of their return, other delay in their payment, interest on the amount of the debt shall be paid. The amount of interest is determined by the key rate of the Bank of Russia in force in the relevant periods. These rules apply unless a different amount of interest is established by law or an agreement (as amended by the Federal Law of July 3, 2016 N 315-FZ - Collection of Legislation of the Russian Federation, 2016, N 27, Art. 4248). 2. If the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in excess of this amount. 3. Interest for the use of other people's funds shall be charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the calculation of interest by law, other legal acts or an agreement. 4. In the event that an agreement of the parties provides for a penalty for non-fulfillment or improper fulfillment of a monetary obligation, the interest provided for in this article shall not be recoverable, unless otherwise provided by law or the contract (paragraph 4 was introduced federal law dated March 8, 2015 N 42-FZ - Collection of Legislation of the Russian Federation, 2015, N 10, art. 1412). 5. Calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled in the course of carrying out business activities by the parties, the use of compound interest is not allowed, unless otherwise provided by law or contract article 1412). 6. If the amount of interest payable is clearly disproportionate to the consequences of the breach of obligation, the court, at the request of the debtor, has the right to reduce the interest provided for in the agreement, but not less than to the amount determined on the basis of the rate specified in paragraph 1 of this article (paragraph 6 was introduced by the Federal Law of March 8 2015 N 42-FZ - Collection of Legislation of the Russian Federation, 2015, N 10, item 1412). Interest on a monetary obligation 1. In cases where a law or an agreement provides that interest is accrued on the amount of a monetary obligation for the period of use of funds, the amount of interest is determined by the key rate of the Bank of Russia in force in the relevant periods ( legal interest), unless a different amount of interest is established by law or contract. 2. The condition of an obligation providing for the calculation of interest on interest is void, except for the conditions of obligations arising from contracts bank deposit or from contracts related to the implementation of entrepreneurial activities by the parties.

The Law on Amendments to Part One of the Civil Code of the Russian Federation made significant changes to Article 395 of the Civil Code of the Russian Federation, which changed the procedure for calculating interest for the use of other people's funds. Please note that the law on amendments to Art. 395 of the Civil Code of the Russian Federation comes into force on June 01, 2015. Accordingly, Article 395 of the Civil Code of the Russian Federation applies to relations that arose after the specified date. For relations that arose earlier, the order that existed before the changes is applied. Since, purely technically, the procedure for calculating interest has become more complicated, it became necessary to quickly and efficiently calculate interest for the use of other people's money. For a quick calculation of interest for the use of other people's money, you can use the interest calculator under Art. 395 of the Civil Code of the Russian Federation, which will help you quickly and efficiently calculate interest under Art. 395 of the Civil Code of the Russian Federation . Calculator 395:

Under the old version of Article 395 of the Civil Code of the Russian Federation, it was much easier to calculate interest for using other people's money. With the new edition of the article, it will be difficult and time-consuming to calculate interest without a special interest calculator. These difficulties are related to the fact that the interest for the use of funds (as a liability for breach of obligation) will be determined by the average bank interest rates published by the Bank of Russia and taking place in the relevant periods on deposits of individuals. These rules apply unless a different amount of interest is established by law or by agreement.

You can view the size of the average bank interest rates on deposits of individuals using the Consultant system or on the website Central Bank Russia. On the other hand, the law provides that the amount of interest for the use of other people's funds will be determined by an agreement or law. If an adequate interest clause is determined in the contract, comparable to the degree of breach of the obligation, then the interest clauses stipulated by the contract will be applied accordingly. At the same time, when it comes to conditions acceptable for use interest rate provided for by the contract, actually means such contractual conditions under which there is no basis for the application of paragraph 6 of Art. 395 of the Civil Code of the Russian Federation, which states that if the amount of interest payable is clearly disproportionate to the consequences of the breach of obligation, the court, at the request of the debtor, has the right to reduce the interest provided for in the agreement, but not less than to the amount determined based on the rate specified in paragraph 1 of Art. 395 RF. Therefore, in order to make life easier for myself and my creditors for legal claims, I recommend setting adequate interest rates for non-fulfillment of monetary obligations, for example, within the refinancing rate. This will simplify the task of calculating interest in court.

If the amount of interest exceeds the bank rate (it will be clearly disproportionate), then the court will have reason to recalculate the interest in accordance with paragraph 1 of Art. 395 of the Civil Code of the Russian Federation (in other words, “use” the interest calculator for 395 given above). And if initially the contract would have established an adequate amount of interest, then this could slightly simplify and, possibly, speed up the trial. In any case, the interest calculator under Art. 395 of the Civil Code of the Russian Federation. This interest calculator under Art. 395 of the Civil Code of the Russian Federation is suitable both for a court of general jurisdiction and for arbitration court. Who does not know, the world court is part of the system of courts of general jurisdiction.

In addition, Art. 317.1 of the Civil Code of the Russian Federation, which deals with interest

Let's see what is the difference between Art. 395 and 317.1 of the Civil Code of the Russian Federation? Article 317.1 of the Civil Code of the Russian Federation is placed in the section "Fulfillment of obligations", and Art. 395 of the Civil Code of the Russian Federation is placed in the section "Responsibility for violation of obligations." Therefore, the interest under Art. 317.1 of the Civil Code of the Russian Federation are charged for the legitimate use of funds between commercial organizations. The question arises as to whether Art. 317.1 and to what extent it will apply. I believe that the wide application of Art. 317.1 will not have, but interest for the use of other people's money as liability for failure to fulfill obligations under Art. 395 of the Civil Code of the Russian Federation, will be widely applied. The legislative novelties also include the establishment of a procedure in accordance with which interest for the use of other people's funds is charged on the day the amount of these funds is paid to the creditor (clause 3 of article 395). The prohibition of accruing interest, if a penalty is provided (paragraph 4 of article 395). The prohibition on accruing interest on interest (compound interest) (clause 5, article 395). These provisions shall apply unless otherwise provided by law or contract. In any case, the use of the Interest Calculator will simplify the calculation of interest under Art. 395 of the Civil Code of the Russian Federation.