Calculation of the amount of the penalty under the contract. Penalty calculation at the refinancing rate, penalty online. Calculator for calculating the percentage of contractual penalties

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What is one three hundredth of the refinancing rate of the Central Bank of the Russian Federation? If the law specifies a penalty of one three-hundredth, and the contract specifies one five-hundredth, then what is greater? If the refinancing rate of the Central Bank of the Russian Federation is not indicated, then one hundred and fiftieth of what? What is the difference between a fine and a penalty?

Some of the most common questions when talking about liability for breach of contract are: “What is one three-hundredth?”, “How to calculate the penalty?” and “How does a fine differ from a penalty?” We’ll talk about all this and other aspects of calculating penalties today.

What is a forfeit, fine, penalty?

First of all, it is necessary to explain what a penalty is and how it differs from a fine or penalty. As always, if questions arise regarding civil law, we open the Civil Code of the Russian Federation.

As Article 330 of the Civil Code of the Russian Federation states a penalty (fine, penalty) is an amount of money 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 the case of delay in fulfillment.

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Spoiler

Civil Code of the Russian Federation Article 330. The concept of a penalty

1. A penalty (fine, penalty) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment. Upon a claim for payment of a penalty, the creditor is not required to prove that he suffered losses.

2. The creditor has no right to demand payment of a penalty if the debtor is not responsible for non-fulfillment or improper fulfillment of the obligation.

Now let's translate this into understandable language.

Relations between the parties, in civil law, are mainly built on the basis of transactions. And transactions are formalized in the form of contracts, for example, the most common are purchase and sale contracts, leases, paid services, loans, etc.

Any transaction is essentially an action that a party must do, for something or for someone. Basically, all transactions are divided into unilateral and bilateral (or multilateral).

Spoiler

According to Article 154 of the Civil Code of the Russian Federation, bilateral and multilateral transactions are distinguished, but to simplify understanding, we will assume that bilateral ones are included in multilateral ones. Because of this simplification, we will talk about bilateral ones, as they are more familiar and more widespread, but we also mean multilateral transactions.

The main difference between a one-sided deal and a two-sided one is that it is impossible to force a one-sided deal to be concluded, but a two-sided one can be forced.

You cannot force a person to give away his car - this is a one-sided transaction, but you can force him to give away the car if it is a two-sided transaction (for example, a contract for the sale and purchase of a car).

It is this opportunity to force the other party to perform some actions that is called an obligation in civil law.

Spoiler

Civil Code of the Russian Federation Article 307. Concept of obligation

1. By virtue of an obligation, one person (debtor) is obliged to perform a certain action in favor of another person (creditor), such as: transfer property, perform work, provide a service, contribute to a joint activity, pay money, etc., or refrain from a certain action, and the creditor has the right to demand that the debtor fulfill his obligation.

2. Obligations arise from contracts and other transactions, as a result of causing harm, as a result of unjust enrichment, as well as from other grounds specified in this Code.

3. When establishing, fulfilling an obligation and after its termination, the parties are obliged to act in good faith, taking into account the rights and legitimate interests of each other, mutually providing the necessary assistance to achieve the goal of the obligation, as well as providing each other with the necessary information.

If there is an obligation, i.e. obligation to perform something, then there must be an opportunity to force this obligation to be fulfilled or to punish for non-fulfillment. One of the penalties is a penalty.

So, in simple terms, a penalty is a monetary punishment for violating a contract.

Is there a difference between a penalty, a fine and a penalty?

Hardly ever. If you use “penalty” instead of the words “fine” and “penalty”, this will be correct, because “penalty” is a common word for “penalty” and “fine” and when pronouncing the word “penalty” you can safely mean both “fine” and “penalty” and their combination.

However, instead of saying “fine”, saying “penalty”, or vice versa, is not correct. From the point of view of legal language, it is necessary to divide the “forfeit” into “penalties” and “fine” (although this is not necessary):

• a fine is a punishment (penalty) for a completed violation of a contract, which is measured by a specific, fixed amount;

Spoiler

fine - a sum of money that the debtor is obliged to pay to the creditor for the fact of non-fulfillment or improper fulfillment of an obligation

• penalties are a punishment (penalty) for a continuing (ongoing) violation of the contract, which changes over time, i.e. The longer the violation lasts, the greater the punishment (penalties increase).

Spoiler

penalty - an amount of money that the debtor is obliged to pay to the creditor for the period of non-fulfillment or improper fulfillment of the obligation

Let's look at examples:

• the debtor delayed payment under the contract. This is a complete violation. Even being one day late is already a violation. Those. The key at this point will be the FACT itself - the debtor delayed payment. If this happens, then it doesn’t matter how long the delay will last, because... the violation has already occurred. In this case, it would be correct to use the type of penalty - a fine.
• The debtor has been delaying payment under the contract for 10 days. This is a disorder that lasts over time. The period of disruption is important. If the debtor owes one day, then usually this is not a problem, but what if a thousand days pass? Can the same punishment be equal for one who is late one day and one who is late a thousand days? It is in such cases that a type of penalty is applied - a penalty.

Is it possible to apply both fines and penalties at the same time? The short answer is yes, you can. We’ll talk in more detail later in the text, but it should be remembered that a fine is a punishment for the fact of a violation, and a penalty is for its duration, and since this is a different calculation procedure, both a fine and a penalty can be applied.

Legal or contractual penalty?

Now about the difference in the concepts of “legal” and “contractual” penalties. As can be seen from the words themselves, the main difference is WHERE the penalty is provided. The penalty may be provided for by law or specified in the agreement between the parties. For example:

• The law “On the Protection of Consumer Rights” establishes a penalty for violating the 10-day period for returning money for goods in the amount of 1% per day of the cost of the goods (more details in the material “”);
• The law “On participation in shared construction” establishes a penalty in the amount of one hundred and fiftieth of the refinancing rate of the Central Bank of the Russian Federation for each day of delay in the transfer of a completed apartment to a citizen (more details in the material “”);

etc. These are examples of “legal” penalties.

Spoiler

Law of the Russian Federation dated 02/07/1992 N 2300-1 “On the protection of consumer rights”

Article 23. Responsibility of the seller (manufacturer, authorized organization or authorized individual entrepreneur, importer) for delay in fulfilling consumer requirements

1. For violation of the deadlines provided for in Articles 20, 21 and 22 of this Law, as well as for failure to fulfill (delay in fulfillment) the consumer’s request to provide him with a similar product for the period of repair (replacement) of a similar product, the seller (manufacturer, authorized organization or authorized individual entrepreneur, importer), who committed such violations, pays the consumer a penalty (penalty) in the amount of one percent of the price of the goods for each day of delay.

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Federal Law of December 30, 2004 N 214-FZ “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation”

Article 6. Time limit for transfer by the developer of a shared construction object to a participant in shared construction

2. In case of violation of the deadline stipulated by the contract for transferring the shared construction object to the participant in shared construction, the developer shall pay the participant in shared construction a penalty (penalty) in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation, valid on the day of fulfillment of the obligation, from the contract price for each day of delay. If the participant in shared construction is a citizen, the penalty (penalty) provided for in this part is paid by the developer in double the amount. In the event of a violation of the contractual deadline for transferring a shared construction project to a participant in shared construction as a result of the participant in shared construction evading signing a transfer deed or other document on the transfer of a shared construction project, the developer is exempt from paying a penalty (penalty) to the participant in shared construction, provided that the developer properly fulfills his obligations under such agreement.

(as amended by Federal Laws dated July 18, 2006 N 111-FZ, dated July 3, 2016 N 304-FZ)

At the same time, often in sales contracts we see a seller’s penalty in the amount of 0.1% of the cost of the goods for each day of delay, or 0.1% of the cost of the apartment for each day of delay in its delivery. These are examples of “contractual penalties.”

So what penalty will apply if they contradict each other?

The judicial practice of the last two decades has developed into a simple rule - a penalty in a contract is more important than a penalty in the law.

Spoiler

There are exceptions to this rule, but these are more precisely “exceptions” associated with certain imperative norms. Civil law has a dispositive nature of regulation, therefore, in the vast majority of cases, liability is regulated by dispositive norms, which increases the priority of contractual liability.

BUT

If one party to the contract is an ordinary citizen, and the other party to the contract is a legal entity (firm) or entrepreneur, then the rule sounds like this: “The rights of citizens cannot be infringed” 🙂 for a business the penalty increases, for a citizen it decreases:

• if the seller (entrepreneur) is at fault and the penalty in the contract is less than in the law, the penalty will be applied according to the law. If the citizen is at fault, a contractual penalty will be applied;
• if the seller is at fault, and the penalty in the contract is greater than in the law, the penalty under the contract will be applied. And also vice versa - in relation to the guilty citizen, the penalty that is smaller will be applied, i.e. in law.

Spoiler

A similar rule can be used between legal entities, but then it is necessary to prove the “weakness” of one legal entity in front of another.

===========================

extracts from the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 N 16

==========================

In cases where it is established that when concluding a contract, the draft of which was proposed by one of the parties and contained conditions that were clearly burdensome for its counterparty and significantly disrupted the balance of interests of the parties (unfair contractual terms), and the counterparty was placed in a provision that makes it difficult to agree on a different content of certain terms of the contract (that is, it turned out to be a weak party of the contract), the court has the right to apply to such a contract the provisions of paragraph 2 of Article 428 of the Civil Code of the Russian Federation on contracts of adhesion, changing or terminating the corresponding contract at the request of such counterparty.

Also, taking into account the specific circumstances of the conclusion of the contract and its terms as a whole, the condition on the obligation of the weak party to the contract, exercising its right to unilateral refusal of the contract, to pay for this a sum of money that is clearly disproportionate to the losses of the other party from early termination of the contract.

11. When resolving disputes arising from contracts, if the terms of the contract are unclear... the court’s interpretation of the terms of the contract must be carried out in favor of the counterparty of the party that prepared the draft contract or proposed the wording of the relevant condition.

Until proven otherwise, it is assumed that such party was a person who is a professional in the relevant field requiring special knowledge (for example, a bank under a loan agreement, a lessor under a leasing agreement, an insurer under an insurance agreement, etc.).

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It’s difficult and difficult, but it’s possible.

What is one three hundredth of the refinancing rate of the Central Bank of the Russian Federation?

• in a fixed amount. For example, 10,000 rubles for violation of payment deadlines;
• as a percentage of something. For example, 1% per day of the debt amount;
• in the amount of one something, for example one three hundredth, of the refinancing rate of the Central Bank of the Russian Federation (or the key rate of the Central Bank of the Russian Federation).

The first option is the most understandable. This is how the penalty (fine) is usually indicated and nothing needs to be calculated.

The second option (penalties) also does not cause problems in calculation - take the number of days of violation, multiply by % per day of the amount (for example, from the amount of debt) and you will get the amount of the penalty (you can read more in the material "" The main thing is to determine from what to calculate the %. Read more We'll talk about this later.

The main problems in calculations are caused by the third option - when the text indicates one three hundredth of the refinancing rate of the Central Bank of the Russian Federation or simply the refinancing rate.

What is the refinancing rate of the Central Bank of the Russian Federation?

What is one three hundredth?

As we have already discussed above, the refinancing rate is the cost of the loan. And the cost of the loan has a certain size.

The size of almost any loan is determined in the amount of interest per annum - i.e. in the amount of interest that will be accrued if the loan is used for a whole year.

It’s good if the penalty period (or loan term) is exactly one year. But this is rare. Therefore, the period for the penalty is calculated by the number of days.

How many days are there in a year?

• — 365 or 366

• — divide the amount of the penalty (loan size, refinancing rate) by the number of days, i.e. at 365.

This is 1/365 or one three hundred sixty-fifth

Probably, in order not to break the tongue and slightly increase the level of responsibility, they chose one three-hundredth - or 1/300.

How to get one three-hundredth?

• It is necessary to divide the amount of the penalty (loan size, refinancing rate) by 300 and this will be the amount of the penalty for one day of violation.

Therefore, you should not be afraid of the values ​​of one three-hundredth, one hundred and fifty-fifth, etc. This is simply the amount of the penalty (the cost of the loan) divided by this number and obtained the amount of the penalty per day.

Spoiler

By the way, one three hundredth can be from anything - from the amount of the contract, from the cost of the car, from the number of the world's population. One three-hundredth is still just a part of something - just a fraction. If you can calculate this something, then one three-hundredth is calculated.

Then, it should be remembered that one three-hundredth will not necessarily be per day. This could be per hour or per week. When calculating, we just have to calculate it correctly, for example:

one three-hundredth of 100 per hour for 20 days is = (100 / 300) x 24 x 20 = 160

and one three-hundredth of 100 per day for 20 days is = 6.66

How to calculate the penalty?

The procedure for calculating penalties can be either simple or complex. It all depends on the penalty. Let's consider the calculation of penalties, because a penalty in the form of a fine does not cause problems.

General algorithm for calculating penalties simple: there is the amount of responsibility, there is the period of violation - all that remains is to multiply them.

Period of violation usually days (weeks, months, years). Therefore, 95% of penalty calculations are simply multiplying the number of days by the amount of liability. And if you easily calculate the number of days of the violation period in Excel or LibreCalc: last date - first date + one day, then determining the extent of liability causes problems.

Main options for contractual penalties

% of violation per day

• For late payment for the next batch of goods, the buyer is obliged to pay 0.1% of the cost of the batch for each day of delay

Failure to comply with payment deadlines, which are stipulated in contracts or provided for by law, leads to the payment of penalties called late fees. The penalty can be fixed or calculated as a percentage of the obligation for each day of delay. The legislation excludes oral agreements to ensure the fulfillment of obligations, so everything is secured in written contracts and agreements. Almost the only way to ensure compliance with the terms of the contract is a penalty. The only exception is the penalty that is provided for by law; in this case, regardless of whether this clause is taken into account in the contract or not, collection of penalties. And if the parties fixed the amount of the penalty less than that approved by the Law, then, accordingly, the penalty is collected in the amount provided for by law. And on the contrary, if this clause is not provided for in the contract and is not provided for by regulation, then no penalty will be charged.

Penalties according to the agreement.

So, a written contract has been concluded, and contains a clause on payment and amount late fees. When calculating penalties, the following are taken into account:

Amount of debt;

Penalty accrual period;

Penalty amount.

The amount for which a penalty must be charged is not difficult to determine; only the amount that was not paid at all or was paid late is taken into account. Therefore, it is very important to take into account the deadline for fulfilling the obligation, because the wording of this clause of the contract determines whether there is a delay at all. For example, payment for goods can be counted both from the moment of receipt of the goods themselves and from the moment an invoice is provided from the seller, and if, through the fault of the seller, an invoice was not provided, then no penalty can be charged under the contract.

If obligations are not fulfilled after the expiration of the last day of the specified period, then the first day of delay begins from the next day. But, if the last day of the period falls on a non-working day, then the end of the obligation is postponed to the next working day after the non-working day. As for the end of accrual of penalties, the law provides for a period of 6 months after fulfillment of the obligation. It is also important to take into account the statute of limitations that applies to claims for collection of penalties. The limitation period is the period during which a person can go to court to protect his civil rights, and it is 1 year, i.e. You can only collect the penalty that was accrued for the previous year before going to court. But even after the court makes a decision to collect penalties under the contract, the obligation to pay does not cease, and the creditor has the right to demand payment of penalties for the period after the court’s decision.

• if the contract provides for a fixed amount, then when a debt arises, it is this amount that is paid;
• if the contract specifies a percentage late fees, then the amount of the penalty is calculated as a percentage of the amount of the obligation for each calendar day of delay;
• If the contract does not indicate the percentage of the penalty, then it is calculated at the rate provided for by the legislation of the country. If this rate fluctuated during the period of delay, you should calculate the penalty for each period separately, and then summarize the data obtained.

Penalties for utilities.

In accordance with the law, the consumer is obliged to pay for housing and communal services within the time limits established by the contract or law, and in the event of untimely payments for housing and communal services, he is obliged pay a fine in the amounts established by law or contract. This measure is almost the only and effective way to deal with defaulters.

Payments for gas, water, heat and other services are charged in addition to rent at approved rates. The deadline for payment for services provided is until the 10th day of the month following the previous one, unless otherwise provided by the apartment building management agreement, and from the 11th day of the new month, penalties for utilities begin to apply. Penalties are accrued only for arrears in payment of utility services. No penalties are charged for services such as antenna, intercom and others. If payment is made partially, sanctions will be assessed on the underpaid amount. And no other penalties are charged on the amount of penalties. First, the money goes to pay off utility bills, and the remaining funds go to pay penalties.

Penalties for utilities are accrued for the entire period on the amount of unpaid debt. The outstanding amount of penalties is summarized in the receipt for the next month.

In accordance with current legislation, any concluded agreement must be fulfilled by both parties - on time and in full. This rule does not apply, as in the case of additional agreements, to force majeure circumstances and situations prescribed in advance in the contract. If the delay is not due to one of the listed reasons, the party who did not fulfill the conditions will have to pay a penalty - on a general basis or in accordance with the agreement.

In most cases, a penalty is provided as a penalty for the performance of work or delivery - a small percentage of the transaction amount, accrued daily or once a year. You can calculate the payment amount yourself.

When is the penalty calculated under the contract?

The penalty must be calculated in the following cases:

1. In case of non-fulfillment or incomplete fulfillment of the conditions listed in the contract. For example, if the supplier, acting within the framework of the contract, sent shoe polish to the buyer or intermediary instead of a batch of tomatoes, the receiving party has the right to demand payment of a penalty - in the form of a percentage of the contract value or a fixed amount. Of course, if the situation can be corrected promptly and in full, it is easier to simply point out the mistake to the performer and maintain a good relationship with him; it all depends on the specific circumstances.
2. In case of delay or refusal of payment. It is better for a dissatisfied counterparty to immediately file a claim in court or abandon material claims. Otherwise, it makes sense to first point out to the business partner his negligence and only then, having failed to achieve results, demand payment of a penalty.
3. If one of the parties to the transaction violates obligations towards third parties. This is the least common situation, and the claimed penalty may remain with the counterparty or be transferred, in whole or in part, to the person affected by the negligence of the performer. As in previous cases, the penalty can be charged as a fixed amount (in which case it does not need to be calculated) or as a percentage of the contract amount.

Important: the amount of the penalty or fixed penalty can be specified in the contract. If the parties have not agreed on its size, it is established on the basis of the Civil Code, legislative acts or as a result of court proceedings.

Before demanding payment of a penalty, it would not hurt to draw up one - it can subsequently be used as a legally binding document when attempting to pre-trial resolve the conflict or during court proceedings.

Most often, a penalty is calculated and collected when one or both parties fail to fulfill their obligations under contracts:

1. Purchases and sales. If the seller does not fulfill his obligations, he usually pays a penalty in a fixed amount or as a percentage of the transaction value; the buyer will have to pay a penalty - a small percentage accrued for each period (usually a day) of delay.
2. Supplies. A similar situation: if one or more terms of the contract are violated by the supplier, he pays a penalty specified in the contract or a percentage calculated from the amount of the unfulfilled agreement; the receiving party pays a penalty accrued for each lost day.
3. Contract. Everything is simpler here: in most cases, both the customer and the contractor who are late for unjustified reasons pay a penalty calculated from the cost of the work. Of course, the contract must indicate specific deadlines, as well as the criteria for quality work - it will be extremely difficult to prove your case in court or the prosecutor’s office based on a subjective assessment.
4. Lending. In domestic practice, it has developed that the borrower usually pays the penalty; Even if the creditor is wrong, both law enforcement and judicial authorities turn a blind eye to this. The penalty in this case is calculated as a percentage of the total or unpaid loan amount; In addition, the terms of the contract may provide for other sanctions: fine, alienation of property, etc.
5. Equity participation. A developer who fails to meet the deadlines specified in the contract will have to pay the affected citizen a penalty in the amount of 1/300 of the refinancing rate established by the Central Bank of Russia for each day of delay.

Typically, the basis for calculating penalties when claiming a penalty under a contract is the transaction amount. However, by agreement of the parties, any other initial value can be set - from fixed (for example, 1 million rubles when drawing up large contracts) to floating (undelivered share or unpaid amount).

How to calculate the penalty under a contract?

If the penalty under the contract is accrued in the form of a daily penalty, it is calculated using a simple formula:

Nd = S × P × D, Where

• Nd- penalty under the contract;
• WITH- transaction amount (full or residual);
• P- penalty in the form of a share;
• D- number of days of delay.

If, which happens less often, the calculations use not a daily, but an annual penalty, the calculation formula looks different:

Nd = S × P × D / Dg, Where

• WITH- full or unpaid value of the contract;
• P- penalty expressed in shares;
• D- number of days of delay;
• Dg- number of days in the current year (365 or 366).

An example of calculating a penalty under a contract

Suppose the acquiring organization was supposed to pay for the delivered goods on May 15, 2018, but was 16 days late and paid the counterparty only on May 31 of the same year. The transaction amount is 1.5 million rubles. The amount of the penalty specified in the contract: fixed - 15,000 rubles; in the form of a penalty - 0.1% per year (or in fractional terms 0.001).

In this case, for late fulfillment of the terms of the contract, the buyer will have to pay in favor of the seller: Nd = 1,500,000 × 0.001 × 16 + 15,000 = 24,000 + 15,000 = 39,000 rubles. If part of the payment was made on time (for example, the company transferred half the amount to the supplier’s account), then, unless otherwise provided by the terms of the contract, the debtor will need to pay: Nd = 1,500,000 / 2 × 0.001 × 16 + 15,000 = 12,000 + 15,000 = 27,000 rubles.

Let's sum it up

A penalty under a contract may be claimed by the party that violated its terms. The process takes place pre-trial or judicial, with or without the involvement of intermediaries.

The penalty may be accrued in accordance with the terms of the contract or, if this was not provided for, on the basis of current legislation or by court decision. Claim options - a fixed amount or a percentage of a certain value: the value of the transaction or the outstanding debt. The amount of the penalty under the contract can be calculated by multiplying the specified amount, the penalty in fractional terms and the number of overdue days.

A penalty is a sum of money specified in the concluded agreement between the creditor and the debtor, which the borrower undertakes to pay if he violates the repayment obligation, for example, by late payment. Today we will tell you how to correctly calculate the penalty.

What are penalties and penalties under the contract?

There are two types of penalties:

• contractual penalties;
• legal penalties.

As for legal penalties, the legal obligations for their collection cannot depend on the will of the counterparties. Such a right can be considered as an obligation; moreover, penalties of this type have a close, direct connection with budgetary funds.

Examples of legal penalties include payment of alimony. It is impossible to get rid of such payments, they cannot be changed.

As for the contractual (it can also be called voluntary) penalty, it is established within the framework of agreements between the two parties. Payments, late payments and return conditions may vary. Russian laws allow both parties to agree quite freely on violations and payment of penalties. Delays, interest, payment procedures - all this is negotiated personally, each agreement can be supplemented with new amendments.

Regulation of all the subtleties regarding agreements on voluntary penalties occurs in accordance with the Civil Code of the Russian Federation. It is customary to specify in contracts not only the penalty, but also the calculation of the amount of the penalty, sanctions in case of non-payment, and interest.

It should be remembered that it is most rational to submit a claim or statement of claim, according to which it is planned to collect penalties, into the hands of lawyers who have practice in such matters.

Penalty

How to calculate the penalty correctly

The amount of the penalty depends on the structure of the contract itself. This may be the size of the full amount, i.e. the body of the loan, and maybe part of the funds that were not paid in addition.

In order to know how the penalty is calculated correctly, it is necessary to carefully study all parts of the loan agreements, especially the clause that describes the sanctions applied in case of late payments.

The main parameters are:

• Interest rate. This number describes the numerical essence of the responsibility that falls on the shoulders of the borrower who violated the agreements.
• Late period or period of non-payment. This is the period during which the service/product/payment was delayed beyond the agreed period.
• Amount according to the agreement.

It should be understood that the formula for calculating penalties under a contract applies to direct debt processes associated with borrowing money or on credit, but also to all purchase/sale/delivery transactions. For example, such settlements take place between the seller and the supplier. In this case, the “Non-payment period” parameter means the time during which the supplier can delay the delivery of goods.

Since all three parameters are known and specified in all agreements, they can be safely used:

Penalty = Amount according to the agreement * Interest rate * Non-payment period

Sometimes it seems that, despite the simplicity of this calculation, the calculation depends on the field of activity. But that's not true. This calculation is applicable in almost all types of activities.

Calculation example

Let's look at the calculation of penalties in practice:

Company “A” purchased construction materials worth 35 thousand rubles from supplier company “B”. The price included delivery. The period during which delivery should have taken place, according to the contracts, was indicated as 7 calendar days (week) from the moment the order was purchased, i.e. paid

When should accrual begin? After 7 days, as specified in the contract.

At the same time, supplier company “B” delivered the goods 22 days after the order. The agreement implies, in case of delays, to collect from company “B” a penalty of 2% for each day of delay.

Let's look at all three available parameters:

1. Amount according to the agreement: 35,000 rub.
2. Interest rate: 2%.
3. Non-payment period (late): 22 days - 7 days (acceptable) = 15 days.

We calculate the penalty using the formula:

35,000*2%*15 = 35,000* 0.02 * 15 = 10,500 rub. in 15 days.

As you can see, the amount that company “A” can collect according to the agreement is equal to 30% of the total amount specified in the agreement. Surely a third of the price that company B is forced to return can cover the costs that arose as a result of late delivery.

In order for such collections to be made, you must always remember to indicate interest rates in contracts. What kind of penalty can be collected if the conditions are not agreed upon in the contracts (there are no interest, prices and delay periods), but, instead, the standard line “the penalty can be collected in accordance with the legislation of the Russian Federation” is indicated. In these cases, the refinancing rate of the Central Bank of the Russian Federation should be used, and the interest rate will also have a standard amount, according to Sberbank of Russia.

Penalty = Amount according to the agreement * Non-payment period * Refinancing rate / 36000

We learned in detail about the calculation of penalties under the contract. A calculation calculator based on these formulas can be found online.

Accounting side of the issue

Let's discuss the calculation of VAT on penalties. Accountants often have a question: how fines and penalties are reflected correctly in tax accounting records. Many of these deductions are discovered during audits. Should they be subject to VAT?

Penalties and fines must be reflected in accordance with account 99 in the “Profit and Loss” column. This is done regardless of what the accrual period was. The date on which this debit must be carried out corresponds to the day of the scheduled inspection.

Article 270 of the Tax Code of the Russian Federation states that according to tax accounting, these deductions cannot be presented as expenses, therefore, accounting and tax accounting do not have significant differences.

Examples of calculations of fines and penalties

For a more clear understanding of the calculation process, consider the following practical problems and their solutions.

Example 1

Alexey Kruglov borrowed 10 thousand rubles from Vladimir Leskov, having concluded an agreement. According to the contract:

1. The borrower undertakes to repay the loan funds over 10 months in annuity payments (equal installments). Payments will begin in May 2016 (the agreement was concluded in April).
2. The borrower undertakes to repay the funds with interest equal to 15% before the 30th of each month. Otherwise:
3. The borrower will be forced to pay a penalty of 100 rubles. / day of delay.

Alexey Kruglov was unable to pay his part of the debt in August, thereby being late with the payment by a week. He then returned to Vladimir Leskov the amount intended for the previous month, including the extra charge:

Monthly payment * interest + (overdue period * penalty)

Numerically, the calculation looks like this:

1,000 * 1.15 + (7 * 100) = 1,850 rub.

Accordingly, the penalty paid by Alexey Kruglov is 700 rubles.

Penalty

Example 2

The private enterprise "Kolibri" purchased ink from the company "Tsvet" at a price of 120 thousand rubles. Agreements were concluded between them, which stated that the ink was required to be delivered within 13 days after payment was made. The Tsvet company delivered the ink 9 days late.

The agreements indicated that for each day of delay, the Kolibri company has the right to demand from Tsvet LLC a penalty in the amount of 2% of the price for the entire purchase.

The penalty will be calculated using the formula:

Penalty = Amount according to the agreement * Interest rate * Non-payment period

Numerically it will look like this:

120,000 * 2% * 9=120,000 * 0.02 * 9 = 21,600 rubles

Thus, LLC “Tsvet” paid the enterprise IP “Kolibri” a penalty in the form of 21,600 rubles. This is precisely the price of failure to fulfill one’s duties.

As you can see, there is nothing complicated in calculating penalties and fines under a contract; everything is based on simple mathematical calculations. The most important thing is the thoroughness and timeliness of studying contracts on both sides.

A penalty is a sum of money specified in the concluded agreement between the creditor and the debtor, which the borrower undertakes to pay if he violates the repayment obligation, for example, by late payment.

What is a penalty or penalty?

Many people have entered into an agreement at least once in their lives. Anyone who carefully studies the contents of the contract will certainly pay attention to the conditions of liability for its violation.

The concept of a penalty is enshrined in Art. 330 of the Civil Code of the Russian Federation.

A penalty is an amount of money that the violator of the contract (debtor) must pay to the other party (creditor) in the event of failure to fulfill obligations under the contract. Typically, a penalty is in the form of a fine (a fixed amount for violation of an obligation) or in the form of a penalty (a certain percentage of the contract amount, for example, for each day of delay in delivery of goods).

How to calculate a penalty under a contract

The formula for calculating penalties is useful not only if the other party to the contract has violated something. It is useful to know if you yourself are the violator of the contract. What if the other side makes an error in its calculations (okay, if it’s downward).

1. The amount from which the penalty will be calculated. This can be either the entire amount under the contract or the unpaid portion. In any case, you need to read the liability clause of the agreement very carefully, otherwise you may make a mistake in the calculation.
2. The interest rate, which is the very measure of liability for violation of the contract.
3. The time period of the violation (for example, the number of days the delivery was late or the goods were not paid for).

If all these indicators are found, then you can safely proceed directly to calculating the penalty under the contract.

Formula for calculating penalties

Typically, the formula for calculating penalties looks like this:

contract amount × interest rate × period of delay.

Free legal advice:

How to find multipliers was described above.

Under the contract, construction materials were purchased for the amount of rubles with delivery. The delivery period was indicated in the contract as 10 calendar days from the date of payment (purchase) of the goods. Nothing was delivered within the specified time frame. Moreover, delivery has been delayed for 2 weeks.

The contract states that if the supplier delays delivery of goods, then the buyer has the right to collect from the supplier a penalty in the amount of 1% of the amount under the contract for each day of delay in delivery of goods.

So, the amount of the contract is rubles; interest rate - 1%, overdue period - 14 days.

The calculation of the penalty using the formula will look like this:

Free legal advice:

The fine will be equal to rubles for 2 weeks.

Important: the contract may not contain a penalty interest rate. Instead, sometimes the following wording is found: “For violation of obligations under the contract, a party may recover a penalty in accordance with the legislation of the Russian Federation.”

Usually in this case we are talking about a violation by a party to a contract of a monetary obligation, that is, for example, late payment under the contract. This means that the penalty will be calculated at the refinancing rate of the Central Bank of the Russian Federation. The rate can be found on the official website of the Central Bank.

In Art. 395 of the Civil Code of the Russian Federation describes the rules for calculating such a penalty. The formula for calculating the penalty in this case will look like this:

amount under the agreement × period of delay × refinancing rate of the Central Bank of the Russian Federation /.

Free legal advice:

How to get a penalty under a contract

In order to receive a penalty from the violator, it is better to first contact him with an offer to pay it voluntarily. Such a proposal is stated in writing in the claim. It must indicate the details of the contract, for which penalties are collected, the calculation of the penalty itself, the proposal for its payment, the method and date of payment.

If the text of the contract stipulates a mandatory claim procedure for resolving a dispute, then drawing up such a claim will in any case be a mandatory first step if the question of going to court subsequently arises. Otherwise, the court will leave the claim without consideration, and then precious time will be lost. And as the popular saying goes, time is money!

However, it would be much better to resolve the dispute voluntarily without going to trial. To do this, you can and should not be afraid to enter into active negotiations with a violator of the terms of the contract.

How to calculate a penalty of 3% of the price of work for each day of delay

A penalty in the amount of 3% of the price of work is provided for by the law “On the Protection of Consumer Rights” under contracts for the performance of work or the provision of services (clause 5 of Article 28). Please note that if you have a purchase and sale agreement, another penalty is applied in the amount of 1% of the price of the goods for each day of delay.

Free legal advice:

Examples of contracts under which you can demand a penalty of 3% under the PZPP

• contracting agreements - household (for dry cleaning services, repair of household appliances), construction (construction of a house, bathhouse);
• contracts for the manufacture of furniture;
• installation of plastic windows;
• tourism services - agreement on the sale of a tourism product;
• agreement of shared participation in the construction of an apartment building - in disputes about eliminating shortcomings of the share (if the developer is late in delivering the house, see the procedure for calculating the penalty here);
• consulting, information services - real estate agencies, recruitment agencies, etc.

In general, the list of agreements is open. The main thing is that the contract refers to the performance of any work or provision of services. Please also note that if there is special legislation (for example, on compulsory motor liability insurance, transportation contracts, participation in shared construction, etc.), penalties provided for by these special laws apply.

Under personal insurance contracts (life, health, accidents) - for example, in case of delay in insurance payment, return of part of the insurance premium in case of early cancellation of the contract - such a penalty can be charged.

The application of this penalty is limited under contracts where the debtor undertakes to pay for goods (work, services) or to pay money received under the terms of return (clause 34 of the resolution of the Plenum of the Armed Forces of the Russian Federation No. 17 of June 28, 2012). This refers, for example, to bank deposit agreements. In such cases, interest is usually used for the use of other people's funds under Article 395 of the Civil Code of the Russian Federation.

Is it possible to ask for a penalty under CASCO insurance?

A penalty of 3% under paragraph 5 of Article 28 of the Law “On the Protection of Consumer Rights” may be applied in case of delay in insurance payment under CASCO contracts.

In paragraph 45 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 7 dated March 24, 2016, it is explained that the penalty established by law or by agreement of the parties for violation of a monetary obligation is applied instead of interest for the use of someone else’s money under Article 395 of the Civil Code of the Russian Federation. That is, if the insurance company violates the obligation to pay insurance compensation, a penalty can be demanded under paragraph 5 of Article 28 of the Law “On the Protection of Consumer Rights.” In this case, the penalty should be calculated not on the amount of insurance compensation due to you for this insured event, but on the amount of the insurance premium (cost of the service). The maximum amount of the penalty will be equal to the amount of the insurance premium.

Free legal advice:

Judicial practice on the topic:

paragraphs 16,17 of the Review of the Supreme Court of the Russian Federation on certain issues of judicial practice related to voluntary insurance of citizens' property dated December 27, 2017

In what cases can you ask for a penalty of 3% of the price of work?

Based on Part 5 of Art. 28 of the Law “On Protection of Consumer Rights”:

• in case of violation of the deadlines for the execution of work / provision of services under the contract (including violation of intermediate deadlines, if the execution of the contract is divided into stages, delay in the start or completion of work);
• in case of violation of the new deadline set by the consumer for the completion of work - for example, if the executing company delayed the deadline for the work, and you managed to file a claim demanding that the work be completed within the new deadline specified by you.

The period of delay is determined in days or hours, depending on how the terms of work under the contract are expressed. Take the date established by the contract for the start of work / stage of work / completion of all work and charge the penalty from the next day. The delay will end on the day when your contractor finally begins work / its stage / finishes work.

If you decide not to wait for the work to be completed, but, for example, file a claim for termination of the contract and return of money, then the penalty will be calculated on the day before the filing of the claim.

The penalty is calculated in calendar days. Weekends, holidays, and non-working days are not deducted from the period of delay!

Free legal advice:

According to Article 30 of the Law “On Protection of Consumer Rights”:

• for violation of deadlines for eliminating defects in work. This period must be specified in your claim for elimination of defects. If this period has expired, the penalty begins to accrue from the next day. The penalty is collected on the day when the defects are finally eliminated. In the event that you decide to change your demand, for example, to terminate the contract and return the money, the penalty under this article should be calculated on the day before the delivery of the claim for the return of money.

According to Part 3 of Article 31 of the Law “On Protection of Consumer Rights”:

The penalty is paid if the 10-day deadline for satisfying the claim is violated:

• on reducing the price for work performed (service provided);
• on reimbursement of expenses for eliminating deficiencies in the work performed (service provided) on their own or by third parties;
• on the return of the amount of money paid for the work (service);
• on compensation for losses caused in connection with refusal to fulfill the contract.

On September 1, 2015, due to violation of the work deadlines, you filed a claim for termination of the contract and the return of the advance payment for the manufacture of a log house for a bathhouse in the amount of 30 thousand rubles. The money must be returned to you within 10 days, that is, no later than September 11, 2015. From September 12, 2015, you can demand a penalty in the amount of = rubles * 3 / 100 = 900 rubles for each day of delay.

Also, a penalty under this article can be requested if the deadline for the gratuitous production of another item or the repeated performance of work is violated. The period for satisfying these requirements is equal to the original deadline for completing the work specified in the contract. From the next day after the last day of this period, a penalty is accrued.

What price of work should be taken to calculate the 3% penalty?

There may be 3 options here:

1. If the contract does not contain a breakdown of the total order price into individual work performed, then to calculate the penalty, take the entire order price.

According to the contract, the store agreed to make you a kitchen of 8 cabinets, the total price of the contract was 50 thousand rubles. The contract does not indicate how much one cabinet costs. The store produced half of the cabinets on time, but the rest was overdue. You can consider a penalty of 50 thousand rubles.

Free legal advice:

1. If the contract details how much each type of work costs, then to calculate the penalty you take only the price of the type of work that was overdue.

You ordered the production of 3 plastic windows at a price of 10,000 rubles. The company brought you windows for 10 and 15 thousand rubles on time, but produced a window for 12 thousand rubles only 3 weeks later. In this case, you will calculate the penalty only from the price of one window, i.e. rubles.

1. Please note that some contracts may specify separately the price of materials used and the price of work. In such a situation, only the price of the work is taken to calculate the penalty.

The total contract price for the manufacture and installation of a kitchen is 50 thousand rubles. A specification is attached to the contract, which outlines the cost of all cabinets included in the set, and also separately states the cost of work under the contract - 10 thousand rubles. In this case, the penalty for late completion of work should be calculated from 10 thousand rubles.

Formula for calculating a penalty of 3% according to clause 5 of Article 28 of the Law of the Russian Federation

Penalty = price of work in rubles * 3 / 100 * number of days or hours of delay

Please note that the law limits the maximum amount of the penalty: the penalty cannot exceed the price of a particular type of work under the contract or the total price of the order (if prices for individual works are not specified in the contract).

You ordered the production of a cabinet of rubles. The work was overdue by 60 days. Penalty = rub. * 3 / 100 * 60 days = 750 rub. /day * 60 days = rubles.

Free legal advice:

Since 45 tr. more than the price of performing the work is 25 thousand rubles, the amount of the penalty is limited to the amount of 25 thousand rubles.

Interestingly, if your contractor committed several violations at once (for example, he first violated the deadline for eliminating defects in the work, and then the deadline for returning money on a claim), you can ask for a penalty for each violation.

photo: StockSnap, pixabay.com, CC0 Public Domain

Article from the website Parity - protection of consumer rights. Sample claims.

Paritet.guru

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Comments:

5 comments on ““How to calculate a penalty of 3% of the price of work for each day of delay””

[…] The Law “On the Protection of Consumer Rights” stipulates that if the deadline for satisfying a consumer’s claim is violated, the store bears additional liability in the form of a penalty (1% of the cost of the product for each day of delay). Our lawyers answer how to calculate it correctly. Please note that under contracts for the performance of work or the provision of services, another penalty is applied - 3% of the price of the work for each day of delay. […]

[…] for violation of deadlines for eliminating deficiencies (calculation procedure here). Please note that this penalty will be considered […]

Free legal advice:

[…] In a claim, you can demand a refund of 100% of the cost of the tour, a penalty of 3% for each day of delay, compensation for moral damages, compensation […]

Calculator for calculating interest (penalties) under the contract

(fixed percentage of contractual penalty)

• verified 01/17/2018

The calculator works according to the rules for calculating interest (penalty) under the contract, indicating the percentage of the penalty for each day of delay, as well as in percentage per annum.

Typically, this calculator calculates the penalty at 0.1%, 0.5% or 1% for each day of delay

If in the contract penalty percentage not specified for late payment, then you need to use the interest calculator under Art. 395 Civil Code of the Russian Federation

Free legal advice:

If we are talking about late execution of a contract by a supplier (contractor, performer), then you need a late fee calculator under 223-FZ and 44-FZ

If you need a calculation in shares of the refinancing rate, then you will need a calculator for calculating 1/300 or 1/130 of the refinancing rate of the Central Bank of the Russian Federation for each day of delay

Last update of the calculator algorithm 05/10/2017

Enter debt parameters

You have chosen a maximum penalty amount of more than 100%.

Free legal advice:

In this case, some judges apply the provisions of Article 333 of the Civil Code of the Russian Federation on the proportionality of the amounts collected

The amount of the penalty can be reduced by the court to 100% of the amount in dispute

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3. Click "Insert"

1. Copy the data from the editor (as in the picture).

Pay attention to the order of the columns: date, amount

2. Paste the data into the field on the left

3. Click "Insert"

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Tell me, is it still not possible to make the calculation? Or do you not respond to all messages?

Tell me, is it still not possible to make the calculation?

and if separately

this is the first repayment amount https://dogovor-urist.ru/calculator/dogovor_neustoyka/#loanAmount=.76&dateStart=06.03.2017&dateFinish=30.03.2017&percentType=1&percent=0.1&payments=30.03.2017_506220.76_p/p

and this is the remainder https://dogovor-urist.ru/calculator/dogovor_neustoyka/#loanAmount=650000&dateStart=03/06/2017&dateFinish=04/23/2017&percentType=1&percent=0.1

Free legal advice:

The debtor must pay on 03/06/2017 the amount of 76 (the debt began on 03/06/2017 for one delivery note and one invoice).

Will pay part of the debt 03/31/0.76, remaining to pay.

Paid on April 24, 2017 i.e. interest should be accrued on the amount from 03/06/2017

If calculated separately, then the % from 03/06/2017 to 03/30/2017 (25 days) will be 52

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The balance from 03/06/2017 to 04/23/2017 (49 days) will be 00.

Tell me how to make the calculation? Or does it have to be done for each payment in this case?

You can remove this restriction. We made it because... very often, courts limit the amount of the penalty to the amount of debt under Art. 333 Civil Code of the Russian Federation.

When calculating, we enter the repayment of part of the debt, the debt remains, but when calculating the penalty, the calculation does not occur for the remaining amount of the debt.

And yes, your calculator is perfect)

Use this calculator to calculate the penalty.

I can’t figure out which calculator to use to calculate a penalty in the amount of 0.1% of the unpaid amount, while the penalty is charged for each day of delay before actual payment and only for each payment

However, you can set a different restriction or remove it altogether

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Calculator for calculating the percentage of contractual penalties

The contractual penalty percentage calculation calculator (current as of January 17, 2018) will help you make the calculation of penalties easy, taking into account monthly updates of the average bank interest rate published by the Central Bank of the Russian Federation on the 15th day of each month.

Copying materials from the website “Contract-Lawyer. Ru" is possible only with the permission of the site administration and with an indexed link to the source.

“Free legal consultations” mean answers to standard questions, background information on articles of codes and laws

How to calculate penalties under a contract?

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The calculation of penalties under a contract is made in cases where the counterparty violates obligations, in order to apply penalties and compensate the injured party for harm. The correctness of such calculations is important when the injured party imposes sanctions on the party that has not fulfilled its obligations properly, including when collecting such sanctions in court if the dispute is not resolved through negotiations between the parties.

Calculate the penalty: what is needed

The penalty is calculated based on various parameters individually in each specific case. How contractual penalties are calculated depends on several factors. Based on Art. 330 of the Civil Code (hereinafter referred to as the Civil Code of the Russian Federation) and business customs include:

• the method of calculating a penalty under a specific contract (it is also the type of this method of securing an obligation);
• the method of establishing one or another type of penalty (whether it follows from the norm of the relevant legal act or from the terms of the contract determined by the parties to the transaction themselves);
• type of violation of the terms of the contract committed by the party (in particular, delay in performance, improper performance, non-performance);
• specific circumstances of violations (timing, size);
• the amount of penalties provided for a specific type of violation by a party of its obligations.

Only when all the indicated parameters are established, it is possible to perform accurate and correct calculations of the penalty under the contract, which will avoid additional disputes and conflict situations caused by the disagreement of the other party with the amount of the penalty.

Forms of contractual penalties

In order to protect civil rights and ensure that the parties fulfill their obligations under the transaction, they may, on the basis of clause 1 of Art. 330 of the Civil Code of the Russian Federation, when concluding a contract, include clauses establishing the obligation of the party that violated the terms of the contract to bear the burden of paying a penalty to the injured party. Based on this norm, the parties can independently choose the method of calculating the penalty under the contract in accordance with one or another of its types.

Thus, this legal norm provides for the possibility of establishing such methods of securing obligations as fines and penalties. At the same time, the law does not additionally establish the concepts of these terms and does not disclose specific norms that would regulate the order of calculations when establishing them. In this regard, one should turn to judicial practice and the practice of applying this provision of the Civil Code in civil transactions.

Signs of penalties, for example, were voiced in the Resolution of the Presidium of the Supreme Arbitration Court of February 20, 1996 No. 8244/95, to which the Supreme Arbitration Court included:

• is a sanction;
• is of a current nature;
• is periodic;
• calculated for each day of delay in fulfilling the obligation;
• is calculated for the period of time from the first day following the day when the party was supposed to fulfill the obligation stipulated by the contract until the day of its actual fulfillment.

In addition, the penalty is calculated as a percentage of the contract price.

The fine has some similar features, but, as a rule, it is established not as a percentage, but in the form of a fixed amount and is not periodic, that is, it is established and paid one-time upon the occurrence of circumstances of a violation determined by the parties.

How to calculate a penalty under a contract

The greatest difficulty when presenting a penalty is the need to calculate penalties under the contract, since the fine usually has the nature of a sanction of a fixed, predetermined amount. Penalties require calculations using a certain formula that takes into account a number of indicators.

In general, the formula can be written as follows:

Spr - the amount that was not paid by the party to the contract on time,

Dpr - the number of days for which a penalty in the form of penalties is accrued (starts from the day following the end of the payment period);

% - the amount of interest for one day of late payment, fixed by the parties in the agreement.

So, if the counterparty did not pay rubles during June (30 days), and the percentage of penalties per day is 0.5, then the amount of penalties will be as follows:

× 30 × 0.5% = 1500 rubles.

It is more difficult to calculate the amount of penalties due if, during the period of delay, the debt was partially repaid by the party who violated its obligation. In this case, the amount of penalties is calculated based on the actual amount of debt.

If in the example considered, the debtor made a payment on June 16 in the amount of 5,000 rubles, then the calculations will look like this:

× 15 × 0.5% + 5000 × 15 × 0.5% = 750 + 375 = 1125 rubles.

You can check your calculations using a special online calculator.

Results

Thus, the complexity and features of calculating penalties for contractual obligations depend, first of all, on the type chosen. If the fine is set in a predetermined fixed amount and is not difficult to calculate, then penalties are calculated based on a formula that takes into account the period of delay, the amount of the unfulfilled obligation and the percentage established by the contract.

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Formula for calculating penalties for each day of delay

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The possibility of collecting a penalty for delay in fulfilling an obligation is provided for in Art. 330 of the Civil Code of the Russian Federation, according to which a penalty (fine, penalty) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment.

When collecting a penalty, the creditor should keep in mind that the agreement on the penalty must be made in writing, regardless of the form of the main obligation. Failure to comply with the written form shall result in the invalidity of the liquidated damages agreement.

It is worth noting that in judicial practice in cases of collection of penalties, the greatest disputes arise in terms of determining the moment when the debtor’s delay occurred.

The subject of proof for a claim for a penalty will be: the existence of an obligation of the debtor, non-fulfillment or improper performance thereof and the existence of liability for such a violation in the form of a penalty.

However, even if the creditor proves all the above circumstances, the court may refuse to collect a penalty in the declared amount, since in civil law there is a mechanism for reducing the penalty provided for in Art. 333 Civil Code of the Russian Federation.

By virtue of this article, if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty. A reduction of the penalty determined by the contract and payable by the person carrying out business 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.

It should be noted that there are no clear criteria for determining the proportionality of a penalty, which gives rise to discrepancies in judicial practice.

Thus, the mechanism for collecting a penalty in the desired amount, as well as reducing it to the desired amount, is quite complex and requires the parties to perform actions to prove the above circumstances.