Drawing up a contract for the supply of goods with prepayment

General provisions of the contract, types of prepayment (100%, 50%, etc.)

A supply agreement is a type of purchase and sale agreement, although it has significant differences from it, which we will discuss later.
The transaction is regulated by § 3 ch. 30 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), although general rules on purchase and sale also apply to it. The parties to the contract are the supplier and the buyer, who can be both individuals and legal entities. In this case, the supplier is always a person engaged in entrepreneurial activity (Article 506 of the Civil Code of the Russian Federation), in contrast to a purchase and sale agreement, where the seller can be any entity.

In addition, the goods transferred under the transaction in question are purchased only for business, that is, not for personal purposes (Article 506 of the Civil Code of the Russian Federation), in contrast to ordinary purchase and sale, when an item is purchased for any legal needs.

The prepayment condition means that the buyer transfers money before the goods are transferred. This position is most beneficial to the supplier, because:

preliminary calculation reduces its risks;
he can use the advance payment to purchase the supplied products.

In the case of prepayment, the buyer becomes a less protected party, since the supplier may violate the terms of the contract, which threatens the loss of both time and money. Prepayment makes sense for the acquiring party only if we are talking about a product whose price is unstable and can rise quickly.

If the condition for advance payment is not established, the buyer has the right to pay for the products only after receiving them.

Advance payment happens:

full (100%), when the entire amount under the contract is paid before delivery of the products;

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partial or mixed (usually with an advance payment of 50%), when the second part of the payment is transferred after receipt of the goods.

Another option for such a transaction is an agreement with provisions for the sale of goods on credit (Article 823 of the Civil Code of the Russian Federation). Moreover, credit relations concern only that part of the amount that is paid after the transfer of the thing.

What is a deposit

The legal status of the deposit is regulated by Art. 380-381 Civil Code of the Russian Federation. The concept implies funds transferred by one of the parties as proof that the contract has been concluded. The law does not establish restrictions on the use of interim measures for specific types of transactions. Used for agreements for the supply of goods, provision of services, and rental. Most often used as a security measure when concluding contracts for the purchase and sale of real estate, this is the main difference between an advance and a deposit when purchasing real estate; an agreement between the parties to a transaction with a provision for an interim measure is concluded only in writing. The form of the document is not established by law. In practice, the classical structure of constructing conditions is used, consisting of the following parts:

Introductory (names of the parties, date and place of signing, full name of the person authorized to sign).
Basic (amount, details of the contract under which performance is ensured, information about the secured obligation, payment and return procedure).
Final (names of the parties, INN and OGRN - for legal entities, passport details - for individuals, registration address, signature of an authorized representative, bank details).

The law provides the parties with the opportunity to independently determine how to establish an interim measure. In addition to the considered option of drawing up a separate agreement, the parties can specify the conditions in the contract. For example, using the following wording: “In order to ensure his intentions to conclude and further fulfill his obligations under the contract for the sale and purchase of residential premises, the buyer undertakes to provide the seller with cash security in the amount of 500,000 rubles. The amount is transferred within three calendar days from the date of signing the preliminary agreement. If the buyer refuses to fulfill further obligations under the contract, funds in the amount of RUB 500,000. remain with the seller. If the seller evades fulfillment of contractual obligations, he returns 1,000,000 rubles to the buyer. If the parties mutually fulfill contractual obligations, the amount is 500,000 rubles. shall be offset against the cost of the residential premises.” This disposition shows how an advance differs from a deposit and makes it possible to distinguish between them. There is no mandatory written form for advance payment.

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We formulate conditions for prepayment

The settlement period in a supply agreement with prepayment is set either by a specific date or by a time period, but always occurs before the delivery of the goods. If an advance payment is specified in the transaction, but its term is not defined, then:

Payment for products must be made within 7 days from the moment such a demand is made by the supplier (Part 2 of Article 314 of the Civil Code of the Russian Federation).

What risks does the buyer bear if the contract stipulates advance payment for the goods, but the deadline for making it is not defined, find out in ConsultantPlus. If you do not have access to the K+ system, get a trial online access for free.

The penalty for late payment can be calculated only from the date of delivery of the goods (post. FAS Volga District dated November 17, 2011 in case No. A12-2943/2011).
When shipping products before prepayment, the buyer is obliged to pay on the day of delivery or immediately after it (Clause 1, Article 486 of the Civil Code of the Russian Federation). Otherwise, interest will be charged on the amount under Art. 395 of the Civil Code of the Russian Federation, the period is counted from the moment of shipment plus from 2 to 5 business days required for a bank transfer (clause 16 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 22, 1997 No. 18).

In addition, paragraph 4 of Art. 487 of the Civil Code of the Russian Federation makes it possible to establish in a supply contract with prepayment the seller’s obligation to pay a percentage of the prepayment amount as a fee for using a commercial loan (clause 13 of the post of the Plenum of the Supreme Court of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of October 8, 1998). If the transaction does not determine the amount and procedure for paying interest, then the first condition is calculated in accordance with the refinancing rate (clause 2 of Article 823, clause 1 of Article 809 of the Civil Code of the Russian Federation), and interest is transferred monthly (clause 2 of Article 809 of the Civil Code RF).

With a mixed prepayment, it is recommended, in the interests of the buyer, to stipulate in the text of the contract that for the second half of the payment, in accordance with clause 1 of Art. 317.1 of the Civil Code of the Russian Federation, interest is not accrued for using the deferment amount. It is also advisable, when making partial prepayment or supplying goods in batches, to determine what part of the product is paid in advance if the parties to the transaction are VAT payers.

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Drawing up a prepayment agreement

For a seller of any product or service, an advance is a guarantee that the buyer is going to make an order or purchase. Prepayment is often used by the seller to pay preliminary expenses when delivering the ordered goods or when providing a service. The buyer, when making an advance, risks his own funds without having yet received the goods or services.

To avoid possible fraud on the part of the seller, it would be advisable to confirm the fact of transfer of the prepayment on paper. In the event that the seller for some reason cannot provide the product or service, or the buyer changes his mind about purchasing, the advance payment must be returned to the buyer in full. If the seller is in no hurry to return the advance payment to the buyer, then the law does not prohibit the collection of interest from the seller from the advance payment amount in the advance payment agreement.

Registration of conditions

Thus, it is in the interests of the customer to play it safe and clearly state that their relationship with the contractor is in the nature of commercial lending. In this case, the contract must indicate:

Prepayment deadline . It can be defined by a specific calendar date or a certain period of time, for example, 1 month or six months from the date of signing the contract. Also, the period can be specified not by a date, but by the occurrence of a certain event - the completion of the entire amount of work or a specific stage.
The amount of the prepayment can be indicated as an amount (in numbers and in words, accurate to kopecks). Another option is to register the size as a percentage of the price of the service (30%, 50%, etc.). Then the payment procedure is divided into at least 2 stages - advance payment and payment of the remaining amount (final payment).
Schedule for depositing funds : the parties can agree on depositing funds in stages. For example, the work consists of 7 stages, for each of which payment is made upon receipt, after acceptance. In this case, the advance payment is also transferred immediately; it can be determined as a percentage of the total cost of the service. All further calculations are carried out in accordance with the schedule, which can be included in the annex to the contract.

Receipt receipt

To confirm the transfer of money, you need to issue a receipt. The seller must write it in his own hand in the presence of the buyer. Moreover, not only to sign, but to put it in writing! Proving the forgery of a signature is not so difficult, but proving the entire document is much more difficult.

To confirm the transfer of money, you need to issue a receipt.

The receipt must contain:

Passport details of the parties: full name, date of birth, series, number, by whom and when the document was issued, registration information
Prepayment amount
It must be written that the money is transferred under an agreement
date
Seller's signature, same as in the passport

Often the receipt is not issued separately. For convenience, the parties sign for receipt of money in the agreement itself.

Responsibility of the parties (suspension of delivery, return of advance payment under the contract)

If the advance is not paid, the supplier has the right:

suspend the transfer of goods (clause 2 of article 487, article 328 of the Civil Code of the Russian Federation);
refuse your obligations completely and demand compensation for losses (clause 2 of article 328 of the Civil Code of the Russian Federation);
deliver the products and demand payment of interest under Art. 395 Civil Code of the Russian Federation;
transfer the goods and demand a penalty, if such a condition is stipulated in the delivery agreement with prepayment.

If the seller does not fulfill his obligations, then the buyer may demand (clause 3 of Article 487 of the Civil Code of the Russian Federation):

transfer of paid products;
refund of prepayment.

In what cases will it not be possible to claim an advance? Judicial practice on this issue contains the following precedents:

If the contract has a special condition that the prepayment is returned after termination of the transaction, then it will be possible to receive an advance only after the early termination of the contract (determination of the Supreme Arbitration Court of the Russian Federation dated September 19, 2013 No. VAS-7332/13 in case No. A56-44434/2011) .
If the buyer has not made the full advance payment stipulated in the delivery agreement with prepayment, then the supplier does not have an obligation to transfer the goods. Moreover, in this case, the buyer will not be able to claim his advance payment on the basis of clause 3 of Art. 487 of the Civil Code of the Russian Federation (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated 04/08/2013 in case No. A43-17586/2012).
If the goods have not yet been received and the deadline for its transfer has not yet arrived, and the buyer wishes to return the advance payment, then he cannot demand payment of interest for the use of the advance amount (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 28, 2011 in case No. A43-12388/2010) .
If the goods are delivered on time, the advance payment is not returned to the buyer (resolution of the Federal Antimonopoly Service of the Volga Region dated February 21, 2011 in case No. A57-7141/2010).

Crediting of advance and prepayment via online cash register

When the buyer has received what he paid for in advance, the seller issues a second check. It also uses the “calculation method attribute” attribute.

When registering an advance or prepayment at an online checkout, you should always indicate “full payment” in the “payment method indication” column. If the final payment amount differs from the preliminary payment, there will be problems with making additional payments in other ways. When issuing a check, the prepayment made is debited against the completed shipment.

Further, the check indicates that the payment was made against an advance payment (prepayment), and not in cash or non-cash.

Results

So, delivery with advance payment comes in two types: with full and partial prepayment.
In this case, payment is always made before delivery of the goods. The legislator regulates the issues of prepayment in insufficient detail, therefore, when drawing up an agreement, it is advisable to provide for the condition of prepayment in as much detail and clearly as possible. You can download a sample contract for the supply of goods with prepayment on our website. Based on it, it will not be difficult to draw up your own version, changing the condition on the amount of the advance payment and indicating the period within which the rest of the funds must be paid. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.