Penalty: brief instructions for use and calculation

Instructions for calculating penalties (interest) under a contract using a calculator

The calculator is based on 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. The calculator for calculating the penalty includes the following percentages: 0.1%, 0.5% or 1% for each day of delay. Step-by-step instructions for calculating penalty interest

• In the “Amount of Debt” column, insert the full amount of your debt;
• In the “Delinquency Period” windows, indicate the start and end dates of the period of non-payment of the debt. If you still have not started repaying your debt, enter the current date;
• In the “Interest” column: at this point you need to select not only the amount, but also the period for which interest is accrued (per day or per year);
• In the “Partial payment of debt” window: in the appropriate windows, insert the dates and amount of partial payments on the loan, if any;
• In the “Additional debts” window: indicate the dates and amounts of your additional debts;
• After entering all the data, all you have to do is click the “calculate” button and get the result.

How to calculate the penalty under a supply agreement?

Often, in the process of concluding supply contracts, the parties include in the text of the document a clause on liability in the form of a penalty, which is paid when the terms of the transaction are not fulfilled: on the one hand, the supplier may violate delivery deadlines, provide goods not in accordance with the order, etc.; on the other hand, the buyer may refuse to pay for the delivered goods in full or in part, or make late payments. From the perspective of the Civil Code, a penalty is understood as a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in cases of non-fulfillment or improper fulfillment of obligations, in particular in cases of delay in fulfillment of the latter. Let's talk about how to calculate the penalty.

The penalty established by law or the supply contract for short delivery or late delivery of goods is collected from the supplier before the actual fulfillment of the obligation within the limits of his obligation to make up for the underdelivered quantity of goods in subsequent delivery periods, unless a different procedure for paying the penalty is established by law or contract (Article 521 of the Civil Code of the Russian Federation ( hereinafter referred to as the Civil Code of the Russian Federation).
Note!
The penalty under the supply contract must comply with the requirements of the Civil Code of the Russian Federation regarding the written form of the agreement on compensation of the penalty (regardless of the form of the main obligation) and proportionality to the consequences of the alleged violation (otherwise the court may significantly reduce its amount).

The law provides the parties with freedom to determine violations that will be followed by the collection of a penalty, establishing its size, calculation procedure, etc. In an agreement, a penalty may be called, for example, a fine or penalty and be expressed as a percentage or be a fixed amount.

For your information

If the agreement under which the creditor company collects a penalty from the debtor company does not contain an agreement on the penalty (in the form of a clause in the agreement or a separate document attached to the agreement), the creditor company may demand payment from the debtor company for late fulfillment of payment obligations interest for the use of other people's funds on the basis of the provisions of Art. 395 of the Civil Code of the Russian Federation, that is, based on the refinancing rate of the Central Bank of the Russian Federation.

In accordance with paragraph 1 of Art. 395 of the Civil Code of the Russian Federation, the amount of interest for the use of other people's funds is determined by the discount rate of bank interest on the day of fulfillment of the monetary obligation or its corresponding part, existing at the place of residence of the creditor, and if the creditor is a legal entity - at its location.

Let us remind you that according to Art. 395 of the Civil Code of the Russian Federation, if the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in the amount exceeding this amount.

In practice, penalties are calculated in different ways. Therefore, let’s look at how to correctly calculate the penalty in several of the most common situations:

• if the contract stipulates the payment of a fixed amount, then when a debt arises, it is this amount that is paid;
• if the contract specifies a percentage of penalties, then the amount of the penalty is calculated as the product of the total amount of debt and the percentage of penalties charged for each calendar day of delay;
• if the contract does not specify the percentage of the penalty (the percentage of the penalty is not specified, the fixed amount is not specified), the penalty is calculated at the refinancing rate of the Central Bank of the Russian Federation. Note that if the refinancing rate fluctuated during the period of delay, the specialist should calculate the penalty separately for each period with a certain rate value, and then summarize the data obtained. This coefficient in current values ​​is always indicated on the Central Bank website. In the calculation, both all days of delay (calendar days) and “effective” days can be used - the choice is up to the creditor company, since which of the two options is correct, arbitration practice does not give a specific answer.

Let's consider both options for calculating interest:

Option 1. Use of all days (calendar) of delay . The amount that the debtor company will pay the creditor for using someone else’s money is calculated using the following formula:

Amount of interest = Amount of debt × Period of debt in calendar days × Refinancing rate of the Central Bank of the Russian Federation / 360. (1)

Please note that interest for the use of other people's money is accrued for each day of late payment, and the number of actual calendar days is taken into account, counting from the next day after the date on which the late payment began (conditionally, if the company was supposed to pay before October 16, then the number of days is counted from the 17th). The last day of counting is the day designated for payment of the penalty.

Option 2. Using only “effective” days. According to the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14, when calculating the annual interest payable at the refinancing rate of the Central Bank of the Russian Federation, the number of days in a year (month) is taken equal to 360 and 30 days, respectively, unless otherwise established by agreement of the parties, rules binding on the parties, as well as business customs. The formula for calculating the amount of interest is as follows:

Amount of interest = Amount of debt × Period of debt in “effective” days × Refinancing rate of the Central Bank of the Russian Federation / 360. (2)

Interest is accrued until the actual fulfillment of the monetary obligation, determined on the basis of the conditions on the procedure for payments, the form of calculations and the provisions of Art. 316 of the Civil Code of the Russian Federation on the place of fulfillment of a monetary obligation, unless otherwise established by law or agreement of the parties.

Let's look at the procedure for calculating penalties using examples.

Example 1

The debt of OJSC Beta to OJSC Alpha arose on 10/17/2013 and as of 10/01/2014 amounted to RUB 555,495.96. It is necessary to calculate the amount of the penalty in accordance with clause 6.5 of the agreement between the companies, as well as the amount of interest for the use of other people's funds for the period from 10/17/2013 to 10/01/2014.

Clause 6.5 of the agreement provides for a penalty in the amount of 1/365 of the refinancing rate of the Central Bank of the Russian Federation for each day of delay.

By virtue of Art. 309, 310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the contract and the requirements of the law. Unilateral refusal to fulfill obligations and unilateral changes in the terms of the contract are not allowed. Calculation of the amount of penalties by month is presented in table. 1.

According to table. 1 total fine amounted to RUB 44,717.42. If we break it down by month, then for October 2013 a penalty of 1,916.46 rubles was accrued. (RUB 555,495.96 × 15 days × 0.023% / 100%), for November - RUB 3,832.92. etc.

This calculation can also be formalized as follows: the period of delay from 10/17/2013 to 10/01/2014 is 350 calendar days, the penalty percentage is 0.023.

Therefore, the amount of the penalty for one day is:

RUB 555,495.96 / 100% × 0.023% = 127.764 rubles.

Thus, the total amount of the contractual penalty for the period from 10/17/2013 to 10/01/2014 is equal to 44,717.42 rubles. (RUB 127,764 × 350 days).

Let's calculate the amount of interest for using someone else's money using formula 2. The calculation results are summarized in Table 2.

According to table. 2 OJSC Beta must pay OJSC Alpha interest for the use of money in the amount of 43,918.9 rubles. (RUB 555,495.96 × 345 days × 8.25% / 360).

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Example 2

The debt of Gamma OJSC to Alpha OJSC amounted to:

• for the period from December 14, 2013 to January 16, 2014 - RUB 2,500,000;
• for the period from 01/17/2014 to 06/01/2014 - 6,000,000 rubles;
• for the period from 06/02/2014 to 08/12/2014 - 5,850,000 rubles;
• for the period from 08/13/2014 to 10/01/2014 - RUB 5,600,000.

It is necessary to calculate the amount of the penalty in accordance with clause 6.4 of the agreement between the companies, as well as the amount of interest for the use of other people's funds.

According to clause 6.4 of the agreement, if there is a delay in payment in the amount of 6,500,000 rubles. The supplier has the right to present the buyer with a penalty in the amount of 0.1% per day of the total amount of goods supplied for each day of delay, but not more than 5% of the amount of goods delivered. The calculation of the penalty is presented in table. 3.

According to table. 3 the amount of the fine was 1,898,000 rubles. (RUB 6,500,000 × 292 days × 0.1% / 100%). However, clause 6.4 of the agreement stipulates that the amount of the penalty should not exceed 5% of the amount of the goods supplied, that is, in our case, we must pay a penalty in the amount of 325,000 rubles. (RUB 6,500,000 × 5% / 100%), not RUB 1,898,000.

Next, we calculate the amount of interest for the use of other people's funds (Table 4).

According to the calculations, the total amount of accrued interest is RUB 362,598.96. Please note that the amount of interest for January, June, August is divided into two parts, since the amount of debt changed during these periods. For example, for August interest was accrued for the use of money in the amount of 16,087.5 rubles. (RUB 5,850,000 × 12 days × 8.25% / 360) and RUB 23,100. (5,600,000 × 18 × 8.25 / 360).

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Using the proposed methods for calculating penalties, you can quickly and competently calculate the amount of penalties or fines, and charge interest for the use of other people's funds to a company that does not fulfill the terms of the supply agreement.

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Solution: from 1 min.

More details

An example of calculating a penalty for each day of delay

When calculating penalties, it is necessary to correctly calculate the days of delay.

The moment from which the calculation should begin is set from the next day after the debt arose or after the day on which the violation occurred.

If specific dates are not specified in the contractual agreement, then a letter is sent with a request to fulfill obligations, then compensation is calculated starting from the eighth day after receipt of the letter by the addressee (for this, a documented request is sent by registered mail with acknowledgment of receipt).

Before you start calculating the amount of the penalty, you need to take into account the following factors:

1. How are penalties calculated under a specific contractual agreement?
2. Is a penalty expected based on a written agreement?
3. What kind of violation was committed?
4. Conditions: what amount and term.
5. When calculating a legal penalty, the size of the sanction for a certain type of violation is taken into account.

You can submit an application for compensation of the penalty either to the arbitration court or send it to the debtor.

The amount of the penalty is calculated from the moment the statement of claim is drawn up (the written statement indicates the amount that must be paid).

If the case was heard in court and a decision was made to collect the amount of debt and penalties, then the penalty will be accrued until payment is made.

We invite you to familiarize yourself with: The amount of moral damage

At the same time, for the court, the application indicates the amount of the penalty from the moment the debt arose until the date of filing the claim (according to the established template), and after that it would be advisable to file an additional claim calculating the amount of penalties for the period from the first appeal to the repayment of the debt.

Please note: when filing a claim in court, you should check whether the statute of limitations has expired (equal to 3 years).

Let's look at an example. A purchase and sale agreement for non-residential premises was concluded, the amount of which is 50,000 rubles. The deferred payment period is 20 days.

The buyer paid 25,000 rubles, and was 15 days overdue for the remaining amount. The contract provides for a penalty of 1% for each day of delay.

You should start counting by determining the amount of debt, it will be equal to 25,000 rubles. Further, the amount of the penalty will be equal to: 25,000 * 15 * 1 / 100 = 3,750 rubles.

It is worth noting: in an organization, most often the calculation is drawn up with an accounting certificate, which is necessarily signed by the chief accountant.

If the debtor pays the penalty, this will not free him from the need to cover the main “body” of the debt. The loan money is distributed in the following order:

1. Costs to the creditor due to the debtor's debt.
2. Accrued penalties and fines.
3. The main “body” of debt.

If a person wants to reduce the fine in court, he must immediately go to court without paying a penalty. If payments have already been made, it is unlikely that the funds will be returned.

Penalty determined by law or contract

Such a measure of liability as a penalty can be of two types: in the form of a fine or penalty. The fine is charged once in the form of a fixed amount or a certain percentage of the amount of unfulfilled obligations. A penalty is accrued for each day of delay in repaying a monetary debt or fulfilling another obligation.

For some types of legal relations, the amount of the penalty is established by law.

For example, we are talking about protecting consumer rights, shared participation in the construction of housing, and obtaining compulsory motor liability insurance.

If a penalty is provided for in a specific law, then it is subject to collection regardless of whether the sanctions are fixed in the agreement between the parties or not.

When a penalty is not specified in legal norms, the parties to the transaction have the right to independently establish both the type of liability (fine, penalty) and its amount.

Please note that if a penalty is not established by law or a written agreement of the parties, then it cannot be recovered from the violator.

Often the calculated amount of the penalty is not final. When considering a dispute, the court (district or arbitration) has the right to reduce the amount of liability. At the same time, there are types of penalties that cannot be reduced in court. As an example, it is worth citing the penalty that is charged on alimony debts.

However, the State Duma is currently considering a bill according to which the courts have the right to review such sanctions.

Formula for calculating penalties

Penalty = amount of debt * days of delay * rate

The amount of debt is specified in the agreement between the parties. The days of delay are counted from the next day after the debt was incurred.

Example

Penalty = 215,000 rubles * 86 days * 0.1%

The amount of the penalty will be 18,490 rubles.

IMPORTANT! If a penalty is accrued under an agreement, the debt minus VAT is used in calculations. Before settlements, 18% VAT is deducted from the debt amount.

These calculations are relevant for business relationships under a contract. In other cases, the rate is determined at the rate of the Central Bank of the Russian Federation. So far it is 0.2%.

Let's remember:

• A penalty is a fine for failure to fulfill an obligation under a contract.
• The debtor needs to remember that if there is a delay, he will have to pay not only the main debt, but also a penalty.
• For some debtors unfamiliar with legal nuances, this may come as a surprise. However, creditors should also remember that the debtor can reduce the amount of the penalty if the penalty significantly exceeds the Central Bank refinancing rate. Therefore, it is better not to overestimate the penalty.

There are two main types of compensation:

1. Penya. Accrued, as a rule, when payment or shipment is late. Its size depends on the size of the payment, the number of days of delay and the discount rate.
2. Fine. Occurs due to such violations as the presence of defects, mismatch of product names, shortage of goods, and others.

If information about the amount of sanctions is specified in the agreement, then such a penalty is called contractual. In other situations, we are talking about a legal penalty.

The formula for calculating compensation depends on the type of penalties:

1. The fine is assessed on a fixed amount basis.
2. The legal penalty is calculated as: Contract amount * Percentage rate * Delay period
3. The formula for calculating penalties at the key rate of the Central Bank of the Russian Federation: amount under the agreement * period of delay * key rate of the Central Bank of the Russian Federation / 36,000.