What is the legal penalty for late delivery of goods?

Legislation

The provisions on penalties upon purchase are regulated by:

1. Articles of the Civil Code:

• 330–333 contain general definitions (size, order of establishment, reduction in court);
• 487 describes the penalty in case of advance payment for goods. But these provisions do not apply to consumer relations, because POPP provides for different regulation;
• 521 establishes penalties for late delivery.

1. The Law on the Protection of Consumer Rights regulates penalties for non-delivery of goods in the case of prepayment in Art. 23.1, including the rules on its size and calculation.
2. Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17 “On the consideration by courts of civil cases in disputes about PPP.” References are contained in paragraphs 31–34, which clarify the application of the provisions of the consumer protection law.

IMPORTANT: According to Article 506 of the Civil Code, supply provisions do not apply to relations between consumers and commercial organizations. Such an agreement is in the nature of a purchase and sale with delivery.

After this, there are three possible scenarios:

The supplier agrees to all requirements. In this case, he sends a letter to the customer stating his intention to pay the penalty, and transfers funds to the specified details.

The supplier agrees that he violated the delivery deadlines, but does not want to pay the penalty. The customer can recover it independently from a bank guarantee, if this is provided for in the document; in addition, there is the possibility of withholding a penalty from the funds transferred as security for the contract.

What is a penalty

A penalty (penalty) is a way to protect consumer rights and encourage the seller to fulfill obligations under the contract on time and with high quality. It is paid in a certain amount, calculated on the cost of goods, the price of work, services, etc. Usually expressed as a percentage.

Kinds

The Consumer Rights Protection Law provides for the existence of two types of penalties:

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1. Legal, established PDA. This type cannot be canceled by agreement of the parties.
2. Negotiable. Can be changed to the benefit of the buyer (i.e. the seller's liability will be higher).

The penalty for STD is punitive in nature, i.e. shall be recovered simultaneously with damages. They are not included in the penalty and are reimbursed in full.

IMPORTANT: if the amount of the penalty in the contract is less than that provided by law, then this provision of the document by virtue of Art. 16 of the RFP is considered invalid and the general rules apply.

Only part of the goods was delivered

Sometimes there are situations when the contract provides for one delivery, but in fact the goods are delivered in parts. If a prohibition on such actions is not specified in the contract, then the customer does not have the right to refuse acceptance of the goods. In this case, the shipment delivered without any complaints will have to be paid for.

When the supplier is late in delivering the remaining products, the customer must file a corresponding claim against him. In it, he may demand elimination of the violation and payment of a penalty or termination of the contract, if such a possibility is provided for in the text of the contract.

Penalty for late delivery of goods

The Law on the Protection of Consumer Rights provides for several amounts of penalties - from 0.5 to 3%. When calculating, the minimum value is taken into account, i.e. 0.5%.

According to the consumer protection law

According to Art. 23.1, the legal penalty is half a percent per day of the advance payment amount. Therefore, the formula is: 0.5% *a*b = x, where:

• a – preliminary amount (indicated in a check, receipt, or other document);
• b – number of overdue days;
• x – size (no more than prepayment).

For example, the buyer paid 1000 rubles. The delay period was 10 days, then the penalty for 1 day will be 5 rubles, and for 10 – 50 rubles.

There is uncertainty as to which days are taken into account for the penalty, i.e. Do weekends and holidays count? The Civil Code does not provide for regulation of this issue, therefore the rules of Art. 190 about calendar days. But the parties may establish in the contract a different calculation of the period for penalties, excluding holidays.

Under contract

Contractual penalty provisions may be included in the contract between buyer and seller. The main condition is that its value is not less than that established by law, i.e. 0.5% per day, and this is in writing.

According to the rules of the POPP, the penalty is collected from the day when the seller was supposed to deliver the products until the moment the item is transferred or the amount paid is returned to the buyer. But its value cannot be more than the advance payment.

IMPORTANT: according to paragraph 34 of the Plenum Resolution, the amount of the penalty is reduced in exceptional cases according to the rules of Article 333 of the Civil Code.

If the contract does not specify the delivery time, then in accordance with Art. 457 of the Civil Code, general provisions on obligations apply. Thus, Article 314 of the Civil Code states that delivery must be made within 7 days after the buyer’s request is presented.

Delay in delivery due to coronavirus: how to justify it correctly

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What to do if delivery deadlines are missed

Delivery times for paid goods under the POZPP are specified in the contract and are determined by a calendar date.

The buyer has the right to file a claim for non-delivery of the item within the prescribed period and demand the fulfillment of one of these conditions. In both cases, he must be compensated for losses.

The seller is obliged to satisfy legal demands within 10 days. If he has not fulfilled them, then the consumer can file a claim in court according to the rules of the Civil Procedure Code.

Violation of delivery deadlines (Article 23.1) is the basis for:

• the seller becomes obligated to deliver the products by agreeing on a new date with the buyer;
• return of money paid and termination of the contract.

How do company sales depend on the speed and quality of deliveries?

Our sales depend directly on delivery times. In industry, the customer needs three things: quality, good price and acceptable deadlines. And we must meet all these criteria. If a company cannot provide adequate delivery times, its credibility will diminish, as will the number of orders.

Let's assume that the counterparty let us down, as a result of which we did not receive components for the power plant. This means that all other parts for the unit are “frozen” in the warehouse. And then the consequences come one after another: the rhythm of production is disrupted, the client delays payment, we do not ship products on time, financial indicators collapse. Added to all this is a hole in the image, which no official letters explaining the reasons will close. It is quite difficult to measure all these losses in absolute numbers. But it is clear that they are frighteningly large. For example, just one problematic delivery last year reduced the number of products produced per month by exactly half. We have completed 60 installations, although we can easily complete 120.

Is it possible to recover losses?

Losses are the costs of restoring a violated right (the difference in price between products when the buyer was forced to refuse the item due to delay and buy a more expensive product in another store).

Losses are compensated along with satisfaction of claims arising due to violation of the terms of the contract by the seller. At the same time, they are compensated both voluntarily and in court.

Article 22 of the POPL states that the buyer’s claims for damages are satisfied within 10 days from the date of filing the claim.

If the delivery time is not met, the buyer has the right to demand full compensation.

IMPORTANT: the condition for damages must be included in the content of the claim and justified.

Examples of recommended wording of the terms of a supply agreement

The supply contract should indicate the criteria under which the conditions that arise will be considered force majeure. You can name these conditions - for example, stipulate in the contract that restrictions imposed by the authorities due to the spread of infection are recognized as force majeure within the framework of a specific contract. You can describe these restrictions - in this case, the agreement specifies only those circumstances that affect the activities of a particular contractor.

For example, the delivery time for doors cannot be extended due to the fact that the authorities will prohibit visiting public places at certain times. But if the legislator prohibits trade relations with the country in which materials or components for such doors are produced, an increase in delivery time due to coronavirus will not be considered a failure to comply with contractual obligations.

An example of wording applicable in this case might look like this:

Restrictions imposed by the Russian Federation and other countries in connection with the spread of coronavirus infection are considered force majeure. A party has the right to refer to the impact of force majeure circumstances if it directly and directly resulted in the impossibility of fulfilling the terms of the contract.

If you want to maintain supplier liability even during a pandemic

The opposite situation also happens when the parties do not want coronavirus restrictions to be considered force majeure within the framework of the contract. Under such conditions, fines for failure to meet delivery deadlines during a pandemic are collected in the usual manner - no relief is provided to the contractor. In this case, the text of the agreement should include the following condition:

The agreement is concluded and subject to execution in the context of the spread of coronavirus infection. The parties agreed that, in relation to the terms of the contract, restrictions related to the spread of coronavirus infection are not force majeure circumstances in the sense provided for in paragraph 3 of Art. 401 Civil Code of the Russian Federation.

Methods for selling furniture

2 ways to sell furniture - by samples or remotely.

The current legislation does not establish any prohibitions on the method of selling goods, that is, it does not limit the seller (manufacturer) to use any method to sell the furniture he produces. We will highlight the main and probably the most popular ways of selling furniture:

• sale of furniture by samples - involves direct familiarization of the consumer with the purchased product, which is located at the point of sale. The place of sale means showrooms, shops and other sites (Part 1 of Article 497 of the Civil Code of the Russian Federation, Decree of the Government of the Russian Federation of July 21, 1997 No. 918 “On approval of the rules for the sale of goods based on samples”)
• remote method of selling furniture - involves selling without direct familiarization of the consumer with furniture or its samples when concluding a purchase and sale agreement, including through booklets, catalogs, online stores, etc. (clause 2 of article 497)

Formula for calculating penalties under Article 23.1 of the Law on the Protection of Consumer Rights

Prepayment amount * 0.5% (0.005) * number of days overdue

• Prepayment amount - only that part of the cost of the goods that was paid in advance is taken, i.e. before delivery of the goods. You can take all amounts deposited in cash, by card, or by credit. For example, if a sofa costs 30,000 rubles, but according to the contract the advance payment is only 15,000 rubles, you need to calculate the penalty from 15,000 rubles.
• Number of days of delay - all calendar days in a row are taken, starting from the next day after the date on which the contract was supposed to deliver. The penalty can be accrued on the day of actual delivery of the goods or on the day of return of the advance payment (inclusive) - depending on what you require in the claim.
• The maximum amount of the penalty under Article 23.1 of the Law of the Russian Federation is limited to the amount of the prepayment. That is, if during the calculation the penalty turns out to be more than the prepayment, its amount will be the same as the prepayment. For example: 30,000 rubles * 0.005 * 222 days = 33,300 rubles. This is more than the prepayment, so the penalty is 30,000 rubles.