Penalty for delay in fulfillment of obligations under the contract

Both entrepreneurs and ordinary citizens may face failure to fulfill obligations by the second party to the contract. The situation is not the most pleasant: for example, you expected to receive the goods by a certain date, but the counterparty “forgot” to send it. Or the store to which you submitted the low-quality product for examination is in no hurry to make a decision.

You can, of course, remind the violator of the contract every day about your existence, write, call, waste time and effort. But it is better to resort to a more effective and civilized way to force the counterparty to remember its obligations - to collect a penalty.

Before you begin to collect the penalty, you need to correctly calculate its size. If you have never encountered such calculations before, it is better to seek help from a specialist. Also, the support of a lawyer will be required to organize the collection of penalties under the contract: quite often in such disputes the matter ends up in court.

Do you want to figure it out, but don’t have time to read the article? Lawyers will help

Entrust the task to professionals. Lawyers will complete the order at the cost you specify

390 lawyers on RTIGER.com can help with this issue

Solve the issue >

Penalty for failure to fulfill obligations under the contract: general issues

The main regulatory document covering the provisions on penalties is the Civil Code of the Russian Federation.
Chapter 23 § 2 of the Civil Code of the Russian Federation provides a definition of the term in question, as well as the conditions for the application of this type of liability. A penalty (penalty, fine) is recognized (clause 1 of Article 330 of the Civil Code of the Russian Federation) as a sum of money determined with the consent of counterparties to a transaction or at the legislative level, payable by the debtor in the event of non-compliance with conditions, poor performance or delay in fulfilling obligations.

Accordingly, there are two types of penalties:

• negotiated;
• established by law.

In addition, based on the interpretations given in the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by courts of certain provisions of the Civil Code of the Russian Federation ...” dated March 24, 2016 No. 7, penalties are possible in the form (clause 60):

• fixed rate - fine;
• regular accruals - penalties.

Depending on the method of offsetting the damage incurred, the penalty is divided:

• for credit, if the damage is compensated in the part not covered by the penalty (clause 1 of Article 394 of the Civil Code of the Russian Federation);
• exceptional if only a penalty is claimed, but not compensation for damage;
• a penalty if the amount of damage is compensated in full;
• alternative, when recovery is made of either the damage incurred or the penalty.

How to submit a claim?

The claim must be sent by registered mail or in another way that allows you to track receipt of the letter, to the address of the Addressee's location, i.e. the address that is indicated in the extract from the Unified State Register of Legal Entities/Unified State Register of Individual Entrepreneurs as the registered address of the person.

A copy or copy of the claim, as well as a shipping receipt or other document confirming the sending of the claim to the Addressee must be retained.

We do not recommend handing over the claim in person to avoid disputes in the future.

Amount of penalty for failure to fulfill the terms of the contract

The amount of a legal penalty is determined in legislative acts. If the amount of the penalty for failure to fulfill obligations under the contract is not established by regulation, the parties to the transaction have the right to assign it independently.

IMPORTANT! In accordance with Art. 331 of the Civil Code of the Russian Federation, an agreement on a penalty must be drawn up in writing.

Based on the explanations given in paragraph 63 of Resolution No. 7, a written document on the penalty must comply with the requirements listed in paragraphs. 2, 3 tbsp. 434 Civil Code of the Russian Federation. If an agreement on a basic obligation is declared invalid, this implies the invalidity of an agreement on a penalty or fine (clause 64 of Resolution No. 7).

However, if an agreement on a penalty is concluded, in which it is determined that it is paid in the event of failure to fulfill obligations to return the property, due to the invalidity of the transaction, then the invalidity or non-conclusion of the main contractual document does not entail the invalidity of the conditions on the penalty (paragraph 2, paragraph 64).

In practice, the type, amount and procedure for claiming a penalty are agreed upon directly in the agreement. The amount of the penalty is established as a percentage of the amount of the obligation. There are no legal restrictions on the percentage of penalties for failure to fulfill obligations under the contract.

Explanations from experts on various aspects of the application of penalties can be found in ConsultantPlus. For example, the answer to the question whether the amount of the penalty for violation by the parties of their obligations under the contract may exceed the amount of the principal debt. If you don't already have legal access, a full access trial is available for free.

How is the period of delay calculated?

Everything is quite simple here. Payment begins on the next day after the date on which the obligation under the contract was to be fulfilled (payment for goods, repayment of a loan, and so on). The calculation ends with the date when the money actually came into the possession of the creditor.

We recommend! Interest based on 30 days in a month, 360 days in a year

In this case, the full number of days in each month is taken into account.

For example, if the period of delay began counting on January 15, then it is known that this month has 31 days. If so, then 16 days in this month will be taken into account. And so the calculation is made for each month of delay.

Percentage of penalties according to law

Legal penalties (Article 332 of the Civil Code of the Russian Federation) allow you to demand the payment of penalties for failure to comply with the parameters of the transaction, regardless of whether such an option is provided for in the agreement between the counterparties or not.

At the legislative level, penalties are established for a wide range of civil law relations. Eg:

1. The Law “Charter of Motor Transport and Urban Ground Electric Transport” dated November 8, 2007 No. 259-FZ provides, among other things, for the payment of a penalty:

• for failure to remove cargo under a cargo transportation contract - a fine of 20% of the payment for services;
• late delivery of cargo - a fine of 9% of the freight charge for each day of delay;
• delay in the departure of transport carrying out regular intercity transportation of passengers - 3% of the fare for each hour of delay, but not more than the fare.

1. Law “On the contract system in the field of procurement of goods, works, services for the provision of government. and municipal needs" dated 04/05/2013 No. 44-FZ establishes a penalty:

• for untimely fulfillment of a contractual obligation - in the amount of 1/300 of the current key rate of the Bank of Russia of the amount not paid on time;
• failure to fulfill contractual obligations not related to delay - in the form of a fine, the amount of which is determined in accordance with the Decree of the Government of the Russian Federation “On approval...” of August 30, 2017 No. 1042 and is stipulated in the contract.

1. The Law of the Russian Federation “On the Protection of Consumer Rights” dated 02/07/1992 No. 2300-I establishes the following amounts of the penalty:

• for late delivery of paid goods - a penalty in the amount of 0.5% of the amount of the prepaid purchase for each day of delay;
• failure to satisfy consumer claims voluntarily - a fine of 50% of the amount awarded to the consumer.

Go to court or negotiate

Before deciding which path you will choose, it is worth resolving the issue of paying the principal amount - since the penalty is an additional obligation in relation to the main obligation. Accordingly, it is always possible to calculate a penalty on the debtor until the principal debt is paid and to recover this in a separate claim. The longer the debtor does not pay the principal amount, the more the amount of the penalty increases for him.

If the amount has already been paid by the debtor and the dispute is only about the amount of the penalty, then the safest step for the business would be to quickly and promptly file a claim in court to collect the penalty. There is no point in negotiating and bargaining, because it is your money, which your unscrupulous counterparty has actually been using all this time. Moreover, as we already mentioned above, the courts follow the path of “not reducing” the amount of the penalty declared by the creditor.

If you have already decided to compromise and forgive part of the debt to the counterparty, then you have every right to do so. The penalty is a contractual aspect, and the parties, at their own discretion, have the right to both establish its amount and forgive the debtor a penalty in any amount.

Changing the amount of legal penalties

According to paragraph 2 of Art. 332 of the Civil Code of the Russian Federation, the amount of the penalty established by law may be increased by agreement of the parties, if there is no prohibition on this. The Plenum of the Supreme Court of the Russian Federation in Resolution No. 7 explains that, despite the absence of instructions on this in the Civil Code of the Russian Federation, the legal penalty for failure to comply with the terms of the contract cannot be reduced at the will of the parties to the transaction (clause 61).

In addition, Resolution No. 7 provides a special case when increasing the legal penalty is impossible.

An increase in the statutory penalty is not allowed in relation to the sanctions provided for in Part 14 of Art. 155 of the Housing Code of the Russian Federation for late or incomplete payment of utilities. Judicial practice is formed on these clarifications (for example, the ruling of the Supreme Court of the Russian Federation dated October 12, 2017 in case No. 305-ES17-10359, A40-51128/2016).

In addition, paragraph 62 of Resolution No. 7 specifies that if the basic obligation is violated, then the obligation to pay a legal penalty can be fulfilled:

• providing compensation (Article 409 of the Civil Code of the Russian Federation);
• novation (Article 414 of the Civil Code of the Russian Federation);
• debt forgiveness (Article 415 of the Civil Code of the Russian Federation).

In this case, the method of terminating the obligation to pay the penalty may also be determined in the settlement agreement.

The penalty determined at the legislative level can be reduced by the court in accordance with the provisions of Art. 333 of the Civil Code of the Russian Federation (clause 78 of Resolution No. 7), that is, in cases where the amount to be paid clearly does not correspond to the principle of reasonableness.

How to properly file a claim?

The claim is made in free form, but there are mandatory attributes:

• Name of the document – ​​usually indicates a claim or pre-trial claim.
• Addressee – the person to whom the claim is addressed;
• Addressee – the person on whose behalf the claim is made;
• The basis for the claim is a contract (agreement of the parties) for the supply of goods, performance of work, provision of services in accordance with which the Addressee has obligations to the Addressee.
• Addressee's requirement is a specific requirement of the Addressee to the Addressee in accordance with the terms of the contract or the legislation of the Russian Federation. For example, eliminating defects or replacing goods, etc.
• Time limit for fulfilling the requirement - a specific, reasonable and justified period must be indicated for fulfilling the requirement specified in the claim, after which the Addressee has the right to go to court.
• Signature of an authorized person – the claim must be signed by an authorized person of the Addressee, usually the head of the Addressee’s organization or a person to whom such powers are delegated by the head.
• Bank details of the Addressee - must be indicated if the request concerns the transfer of funds, for example, the return of an advance or the payment of a penalty (fine, penalty).
• In case of imposing a penalty, it is necessary to indicate the calculation of such penalty.

After calculating the penalty using our online calculator for calculating penalties under 44-FZ, you will be able to generate a sample claim.

Collection of penalties under the contract

Claiming a penalty is possible both voluntarily and in court. In practice, this measure of liability is applied, as a rule, through the courts.

In this case, the plaintiff must attach to the statement of claim a document calculating the penalty required from the defendant. The period for which the calculation should be made is determined as follows:

1. Within the meaning of Art. 330 of the Civil Code of the Russian Federation and in accordance with the explanations from Resolution No. 7 (clause 65), the plaintiff’s side is entitled to demand the award of a penalty right up to the day of actual fulfillment of obligations, that is, for example, until the day of actual payment for the goods. Meanwhile, the law or agreement of the parties may define a shorter period for calculating the penalty, or its total amount may be limited.
2. If upon completion of the contractual relationship the primary obligation ends, the penalty is calculated for the period until the termination of the obligation (clause 4 of Article 329 of the Civil Code of the Russian Federation).
3. If upon termination of the contract the basic obligation is not terminated, you can demand not only the payments specified in the contractual document, but also a penalty for their untimely payment (Articles 622, 689 of the Civil Code of the Russian Federation).

The operative part of the court decision indicates the total amount of the penalty calculated at the time the decision was made. Subsequently, after the decision enters into legal force, the amount of the penalty is collected as part of the enforcement procedure by the bailiff.

When an entrepreneur does not pay a penalty

The debtor does not pay the penalty when he is not to blame for the delay. This is what it says in Art. 330, 401 Civil Code of the Russian Federation.

It is generally accepted that entrepreneurs are always to blame for violating contracts with clients and counterparties. Only force majeure exempts from penalties. For example, the cakes were not delivered because the neighbors upstairs flooded the confectionery shop. Ordinary circumstances such as an employee’s error or a delay in products by a supplier will not relieve liability.

The penalty is not yet paid when the statute of limitations on the debt has passed - Art. 207 Civil Code of the Russian Federation.

The total term is three years under Art. 196 of the Civil Code of the Russian Federation. There is no point in going to court later. A positive result is possible only if the debtor does not declare a missed deadline. But the debtor will say: they know such things well.