Penalty for delay in fulfillment of obligations under the contract

Entrepreneurs enter into contracts and expect payment on time. There is a penalty for delay.

We tell you how penalties are collected from the buyer, customer and supplier and what is the chance to pay less if they demand money from you for late payments.

We read:

§ 2 Penalty of the Civil Code of the Russian Federation - about the default penalty and the increased penalty under the contract with the counterparty.

Chapter 25 of the Civil Code of the Russian Federation - when the debtor is not to blame for the delay and it is pointless to demand a penalty.

Section Penalty of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 24, 2016 No. 7 - how the amount of the penalty is reduced in court.

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.

Regulatory acts

The concept of a penalty and its features are contained in the second paragraph of Chapter 23 of the Civil Code. Certain areas of collection are regulated by Chapter 25 of the Civil Code. Paragraph 2 of Article 330 of the Code defines restrictions on the calculation of a fine. In particular, nothing can be recovered from the debtor if he is not responsible for failure to fulfill the terms of the contract or improper performance.

How to reduce the commodity penalty under a supply agreement?

The penalty may be negotiable . The specifics of its collection and the amount are determined on the basis of the contract. In this case, it is necessary to draw up an agreement in writing. This procedure is established by Article 331 of the Code. Verbal agreements will not be valid.

There is also a legal penalty . Its features are set out in paragraph 1 of Article 332 of the Civil Code. It involves mandatory collection, regardless of whether fines are stipulated in the agreement between the parties.

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.

What is a penalty?

A penalty is money that is paid by the debtor to the creditor in case of failure to fulfill the terms of the agreement.

Typically, a penalty is accrued when payments are late on loans and borrowings. This is a fine, not a recovery of damages. The penalty has a number of pros and cons. Among the disadvantages, one can note the relatively small size of the fine. However, the penalty has a very significant advantage - the inevitability of liability. According to paragraph 1 of Article 330 of the Civil Code, the creditor does not have to prove the existence of losses.

How to collect a penalty after the expiration of the loan agreement ?

The amount of the penalty is determined in advance, which ensures its prompt collection. The amount of fines is usually established by agreement. To receive funds, the creditor does not need to prove the amount of losses. The amount of the penalty is determined on the basis of specific contractual relationships.

How to collect contractual and legal penalties ?

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.

From what day is the penalty calculated? Day of fulfillment of the obligation when calculating the penalty

Expert consultation

When one party fails to fulfill its obligations under a contract, the other party experiences various types of losses associated with this failure. For violation of the terms of the contract, as a way of compensating for losses, you can collect penalties - a penalty. Our expert Inna Merlina told us how to do this.

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What is a penalty?

A penalty is one of the ways to secure obligations, encouraging the other party to properly fulfill its obligations and protecting the parties from possible failure to fulfill the terms of the contract. Penalties may be provided for by law or the parties themselves determine their procedure in the contract. In addition to the penalty, you can recover other damages in accordance with the established procedure.

The obligation to pay a penalty can be established for violation of any circumstances. For example, for missed deadlines for completing work, late payment, failure to provide necessary documentation, etc.

According to Art. 330 of the Civil Code of the Russian Federation, a penalty is an amount determined by law or contract that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in case of delay in fulfillment. Thus, a penalty is a penalty, the obligation to pay which arises in the event of violation of the established terms of the contract or by force of law. Penalty is a general concept that includes the concepts of “penalty” and “fine”.

A penalty is a penalty calculated for a certain period of time. It can be established by contract or law for delay in fulfilling an obligation. This penalty increases over time and is accrued from the moment when the payment should be made until the moment when the payment was actually made.

For example, according to the contract, the penalty for late fulfillment of an obligation is 0.1% per day. The period of delay is 30 days.

We get: 0.1% × 30 days = 3%, that is, the amount of the penalty increases with each day of delay.

A fine is a penalty that is set in a fixed amount or in the form of an interest rate. This type of penalty is collected once for any violation. For example, a fine for the supply of low-quality goods may be equal to 5% of the contract amount or in the amount of 5,000 rubles.

Our expert spoke about how the courts approach issues of lost profits in the episode of the “Lawyer LIVE” video program.

Types of penalties: legal and contractual

The parties have the right to provide for a penalty in the contract. In addition, the legislator can also, in some cases, establish the amount of the penalty in a regulatory act.

Legal penalties are provided for by Law No. 44-FZ, for example, for delay in fulfillment by the customer of an obligation stipulated by the contract (Part 5 of Article 34). The Consumer Protection Act also provides for statutory penalties in a number of cases. So, in accordance with paragraph 6 of Art. 13 of this law, when the court satisfies the consumer’s requirements established by law, the court collects from the manufacturer for failure to voluntarily satisfy the consumer’s requirements a fine in the amount of 50% of the amount awarded by the court in favor of the consumer.

SPS ConsultantPlus provides lawyers and managers with access to a complete database of judicial practice of arbitration courts and courts of general jurisdiction of all instances.

Reference information: Legal penalty and its amounts (material prepared by ConsultantPlus specialists) {ConsultantPlus}.

The parties cannot cancel or reduce the legal penalty in advance, but they can increase it. This is a right, not an obligation, of the creditor. For example, the Law on the Protection of Consumer Rights allows for the possibility of increasing the amount of a legal penalty in a contract (clause 5 of Article 28 of the Law of the Russian Federation “On the Protection of Consumer Rights” dated 02/07/1992 No. 2300-1).

The contractual penalty is determined by the contract, and its party is obliged to pay the counterparty in the event that it violates its obligation and is responsible for this violation. In this case, it is not necessary to prove the infliction of losses. Both parties must agree on the contractual penalty. If there are objections from at least one of the parties to the establishment of a penalty, then, as follows from judicial practice, the court does not have the right to establish a contractual penalty for violation of obligations.

It is worth noting that the obligation to pay a penalty does not mean that the party is released from fulfilling the main obligation.

The penalty can be recovered with or without damages. She may be:

• offset - allowing the creditor to receive compensation for losses in the part that is not covered by penalties;
• exclusive - the creditor has no right to recover damages;
• penalty - a case when the creditor can demand full compensation for losses;
• alternatively, the injured party can recover either damages or punitive damages.

Answering the question of what penalty is collected in excess of the amount of damages, we can answer: a penalty. In such cases, the creditor has the right to reimburse the full amount of losses and additionally receive a fine.

Agreement on liquidated damages

According to Art. 331 of the Civil Code of the Russian Federation, an agreement on a penalty must be made in writing, regardless of the form of the main obligation. Failure to comply with the written form will entail the invalidity of the agreement on a penalty. Most often, these provisions are specified in the main agreement, but can also be reflected in an additional agreement. A reference to the main agreement in the agreement on penalties is mandatory. The name of the obligation is indicated, as well as the violation for which a penalty should be applied. The violation may be ongoing or one-time. Accordingly, penalties can be established for ongoing ones, and a fine for one-time ones.

All clauses in the contract must be spelled out as clearly, clearly and unambiguously as possible. Otherwise, a dispute will arise about the interpretation of the terms, which may lead to uncertainty regarding the right to claim a penalty. It should be remembered that if there is no penalty clause in the contract, the injured party may demand compensation for losses and payment of interest under Art. 395 of the Civil Code of the Russian Federation. However, in such a situation, the creditor must first prove the fact of causing losses.

In what cases are parties exempt from paying penalties?

The legislator did not regulate the grounds for exemption from payment of penalties. But in practice this possibility exists in several cases.

1. If the creditor exercised his rights in bad faith and abused the right to collect a penalty. In this case, the court will take into account the nature and consequences of the abuse committed and may fully or partially deny the specified person the right to collect a penalty, and may also apply other measures provided for by law. However, the court does not consider the situation to be an abuse of law if the creditor exercises its right to collect a penalty, the amount of which the parties agreed upon in the contract. This position is reflected in the Resolution of the Arbitration Court of the East Siberian District dated 06/01/2020 No. F02-1203/2020 in case No. A33-6294/2019.
2. If the debtor is not responsible for breach of obligation due to force majeure circumstances. According to paragraph 3 of Art. 401 of the Civil Code of the Russian Federation, the debtor will be required to prove the impossibility of fulfilling the obligation due to reasons that did not depend on him. Otherwise, he is held liable for non-fulfillment or improper fulfillment of the contract.
3. If the forfeit agreement is declared invalid. Or the contractual provision for a penalty may be declared invalid, but otherwise the contract is valid. By virtue of paragraph 1 of Art. 167 of the Civil Code of the Russian Federation, an invalid transaction does not entail any legal consequences, except those associated with its invalidity.

How to calculate the penalty?

There are several options for penalties: in the form of a fine and in the form of a penalty. To calculate a penalty in the form of a fine, the interest rate and the estimated amount on which the penalty is calculated are required. To calculate a penalty in the form of a penalty, in addition to the rate and amount, you will also need a period of delay in fulfillment (non-fulfillment) of the obligation.

The settlement amount is the contract price or the amount of debt. If VAT is included in the amount, then the penalty is calculated on the amount of the debt, already taking into account VAT.

If the fine is determined as a percentage of the debt amount, then the formula is used:

For example, the fine is 5% of the contract price. The contract price is 100,000 rubles.

The contractual penalty in the form of penalties can be calculated in the following ways:

1. If the rate is in percent per annum, then the formula:

In the agreement, the parties can determine the interest rate in the form of the key rate of the Bank of Russia. The current key rate can be found in the “Reference Information” section of the ConsultantPlus legal reference system. Reference information: Key rate and refinancing interest rate (discount rate) established by the Bank of Russia (material prepared by ConsultantPlus specialists based on data from the Bank of Russia) {ConsultantPlus}.

For example, the estimated amount is 20,000 rubles, there is 30 days of delay under the contract, and the interest rate is 20% per annum.

We get:

1. If the rate is in percent per day, then the formula is:

For example, the estimated amount is 20,000 rubles, there are 30 days of delay under the contract, and the interest rate is 0.1% for each day of delay.

We get:

The period of non-fulfillment or delay in fulfilling a contractual obligation is usually determined in days and begins to run from the day that follows the day on which the obligation should have been fulfilled. In this case, the day of actual fulfillment of the violated obligation is also included in the period of delay. This position is supported by paragraph 65 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 24, 2016 No. 7.

According to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated June 6, 2014 No. 35, the penalty, as a general rule, is accrued until the date of termination of the contract. This refers to a penalty that is established for violation of an obligation that forms the subject of the contract. But there are exceptions when the period of delay also includes the days following the termination of the contract.

For example, this applies to a lease agreement, when a penalty is established for late payment of rent and other payments for the use of someone else’s property. In such cases, the penalty is accrued on the day of the actual return of the property.

By virtue of Art. 622, 689 and paragraph 1 of Art. 811 of the Civil Code of the Russian Federation, if the main obligation does not terminate at the time of termination, but at the same time the debtor’s obligation to return the received property to the creditor and to make the appropriate payment for the use of the property remains, then not only the payments for the use of the property established by the contract are subject to recovery, but also a penalty for their delay payment. For example, this applies to lease agreements, loans, loans, and credit.

Before going to court, in some cases it is necessary to follow the procedure for pre-trial dispute resolution. Read more about claims work in the article by our expert.

Day of fulfillment of the obligation when calculating the penalty

According to paragraph 65 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7, when collecting a penalty in court, the creditor has the right to demand its award in the amount that was determined on the date of the decision by the court, as well as for the future - on the day of the actual fulfillment of the obligation inclusive.

According to Art. 330 of the Civil Code of the Russian Federation, the plaintiff has the right to demand the award of a penalty on the day of actual fulfillment of the obligation. In particular, this applies to the actual payment of funds to the creditor, transfer of goods, completion of work, etc.

In this case, the law or agreement may establish a shorter period for calculating the penalty or may impose restrictions on the amount. For example, clause 6 of Art. 16.1 of the Federal Law of April 25, 2002 No. 40-FZ “On compulsory insurance of civil liability of vehicle owners” limits the amount of the insured amount by type of damage caused.

When awarding a penalty to be collected, the court, at the request of the plaintiff, indicates the amount that was calculated on the date of the decision. Additionally, in the operative part of the decision, the court points out the fact that such collection is carried out until the actual fulfillment of the obligation. Further calculation of the amount of the penalty, which will be accrued after the decision is made, is carried out in the process of executing the judicial act by the bailiff or other persons and organizations authorized by law.

As follows from the meaning of the provisions of Art. 202 Code of Civil Procedure of the Russian Federation, Art. 179 of the Arbitration Procedure Code of the Russian Federation, in case of uncertainty or ambiguity, the bailiff, as well as another person entrusted with the execution of a judicial act, has the right to apply to the court for clarification on its execution, including on the issue of clarifying exactly what amount is to be recovered.

As follows from the Review of Judicial Practice, approved by the Presidium of the Supreme Court of the Russian Federation on June 16, 2021, if the bank is vested with the authority to enforce the requirements under the writ of execution, then it will be obliged to calculate the amount of the penalty that is awarded for the future.

The day of actual fulfillment by the debtor of the violated obligation, and in particular the day of payment of the debt to the creditor, is also included in the period for calculating the penalty. The ruling of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated May 19, 2020 No. 305-ES19-26182 in case No. A41-48615/2019 supports the position in which the collection of a penalty on the day of actual fulfillment of the obligation is legal.

Previously our expert talked about how to correctly write off a supplier’s receivables.

Reduction of penalties by the court

As follows from paragraph 1 of Art. 333 of the Civil Code of the Russian Federation, the payable penalty established by law or contract, if it is clearly disproportionate to the consequences of violation of the obligation, can be reduced in court. At the same time, it is clarified that if the obligation is violated by a person carrying out entrepreneurial activities, the court has the right to reduce the penalty, provided that there is an application from the debtor for such a reduction.

In paragraph 2 of Art. 333 of the Civil Code of the Russian Federation further clarifies that a reduction in the penalty determined by the contract and payable by the person carrying out entrepreneurial activities is allowed in exceptional cases, if it is proven that the collection of the penalty in the amount stipulated by the contract may lead to the creditor receiving an unjustified benefit.

If the debtor is a commercial organization, individual entrepreneur, as well as an NPO when carrying out income-generating activities, then a reduction of the penalty by the court is allowed only upon a substantiated application of such a debtor. It is clarified that this statement can be made in any form.

From the meaning of Art. 332, 333 of the Civil Code of the Russian Federation it follows that the establishment in the contract of the maximum or minimum amount (upper or lower limit) of the penalty will not become an obstacle to its reduction by the court.

Taking into account the fact that civil liability is of a compensatory nature, it is therefore assumed that a proportionate payment to the creditor will be adequate to his losses and commensurate with the violated interest. The creditor needs to recover property losses from the breach of obligation, but he should not receive a profit beyond this.

As a general rule, the court can reduce the penalty only in one case - in the case of obvious disproportion of the penalty to the consequences of the violation of the right, but usually the courts reduce the legal penalty for many circumstances.

Let's consider what arguments of the defendant cannot serve as a basis for reducing the penalty. For example, arguments about the impossibility of fulfilling an obligation due to a difficult financial situation, the presence of debt to other creditors, the seizure of funds or other property of the defendant, lack of budget financing, non-fulfillment of obligations by counterparties, voluntary repayment of the debt in full or in part on the day of consideration of the dispute, fulfillment by the defendant socially significant functions, whether the debtor has an obligation to pay interest for the use of funds (for example, on the basis of Articles 317.1, 809, 823 of the Civil Code of the Russian Federation).

A study of judicial practice has shown that, when deciding the issue of reducing the amount of the penalty to be collected, the courts take into account the specific circumstances of the case, taking into account, among other things:

• the ratio of the amount of the penalty and the principal debt;
• duration of non-fulfillment of the obligation;
• the relationship between the interest rate and the refinancing rate;
• bad faith actions of the creditor in taking measures to collect the debt;
• property status of the debtor.

When courts assess the degree of proportionality of the penalty and the consequences of breach of obligation, they proceed from the fact that the refinancing rate (equal to the discount rate of the Central Bank of the Russian Federation) represents the smallest amount of property liability for non-fulfillment or improper fulfillment of a monetary obligation.

In this regard, as a general rule, reducing the penalty below the refinancing rate is not clearly disproportionate to the consequences of late payment of funds. Illegal and illegal use of other people's funds should not be more profitable than lawful use.

The law establishes that the burden of proving the disproportionateness of the penalty and the unreasonableness of the creditor's benefit rests with the defendant. The disproportionate and unreasonable nature of the benefit may be expressed, in particular, in the fact that the possible amount of losses to the creditor that could arise as a result of a violation of the obligation is significantly lower than the accrued penalty.

The creditor is not required to prove the occurrence of losses when he objects to the reduction of the penalty. But at the same time, he has the right to present evidence of what such violations are fraught with if, under comparable circumstances, the parties acted reasonably and prudently. You can point to changes in average market indicators, interest rates, exchange rates, market prices for certain types of goods and services.

As follows from the Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated February 16, 2016 No. 80-KG15-29, due to the disposition of Art. 333 of the Civil Code of the Russian Federation, the basis for its application can only be the obvious disproportion of the penalty to the consequences of violation of obligations. A reduction in the amount of the penalty should not lead to an unjustified release of the debtor from liability for delay in fulfilling the obligation.

When assessing the proportionality of the penalty to the consequences of breach of obligation, it is necessary to take into account that no one has the right to benefit from their illegal behavior.

In particular, information on inflation rates for the corresponding period and the average fee for loans issued by credit institutions to entrepreneurs or individuals can serve as evidence of the validity of the amount of the penalty. The size of the indicators is taken into account at the rates of organizations located at the location of the creditor during the period of violation of the obligation.

A list of established cases of accrual of a legal penalty, its size and calculation procedure can be found in the reference and legal system ConsultantPlus

Question

Is it possible to simultaneously collect penalties and interest under Art. 395 of the Civil Code of the Russian Federation?

Answer

As a general rule, simultaneous accrual of interest under Art. 395 of the Civil Code of the Russian Federation and penalties provided for by contract or law are not allowed. But as an exception, penalties and interest under Art. 395 of the Civil Code of the Russian Federation can be demanded for collection if both of the following conditions are met:

1. The contract must establish that penalties and interest are simultaneously accrued for non-fulfillment or improper fulfillment of a monetary obligation (clause 4 of Article 395 of the Civil Code of the Russian Federation).
2. The penalty provided for in the contract is a penalty (clause 34 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17). At the same time, it should be clear from the contract that in addition to the penalty, damages can be recovered in the full amount.

Otherwise, the court may not recognize such a penalty as a penalty (an example from judicial practice is Resolution of the Arbitration Court of the Moscow District dated 08/03/2015 No. F05-7478/2015, Resolution of the Moscow District Arbitration Court dated 02/04/2015 in case No. A40-62885/2012) .

If the penalty is offset, then collect both it and the interest under Art. 395 of the Civil Code of the Russian Federation, you will not succeed (clause 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7).

Inna Merlina, teacher-lawyer at “What to do Consult” LLC

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.

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.

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.

How to get a penalty from a debtor

The debtor pays the penalty voluntarily or through the court.

But in any case, entrepreneurs are obliged to try to reach an agreement peacefully. To do this, the debtor is sent a claim for payment of the penalty. You can go to court 30 days after sending the claim, if the contract does not contain a shorter period - Art. 4 Arbitration Procedure Code of the Russian Federation.

Example of a claim for payment of a penalty under a software development contract

The claim is sent by mail with a list of the contents. The receipt and inventory are kept for the court. The claim can be duplicated by email to the debtor - this way he will learn about your claim faster.

If an amicable agreement cannot be reached, the creditor goes to court.

For the court, the creditor pays the state fee, writes a claim with the calculation of the penalty and sends a copy to the debtor. Then he submits the statement of claim to the arbitration court with copies of the claim, receipts and agreement. On the appointed dates he goes to meetings, then receives a court decision with a writ of execution. The money is received through the bailiffs or the debtor's bank.

You can hire a lawyer for a court case to collect a penalty. He will prepare a claim and a package of documents, go to court by proxy and bring a writ of execution. The court will collect payment for legal services and state fees from the debtor.

Article: myths about lawyers

In a legal dispute, you must be mentally prepared to reduce the penalty that is too large. To put it bluntly, the creditor can count on an amount no more than the principal debt.