The Civil Code provides several methods for enforcing obligations. Such methods include: a deposit, a security payment, a guarantee, and so on. If the obligations are still not fulfilled, the debtor may be sanctioned by a fine, penalty or penalty.
Fine
Article 330 of the Civil Code provides only general concepts of penalties and it can even be concluded that they are all identical, but there are still differences.
A fine is a penalty that is exacted only in a strictly fixed amount or as a percentage of a debt obligation.
What is the difference between a penalty and a fine? The most important difference between a fine and other types of sanctions is that it can be recovered only once.
Forfeit
This is a sum of money that is established at the level of legislative acts or agreements and is payable in case of default or in case of a significant violation of the terms of the agreement. It is impossible to reduce the size of such sanctions by agreement of the parties. There is a penalty from the moment the delay begins. In order to impose such a sanction, it is not necessary to have a contract.
Penny
The sanction is actually a kind of forfeit. It may be imposed in the form of a fixed amount or interest. What is the difference between a penalty and a penalty? In order to recover a penalty, the contract must contain a direct reference to it. That is, if the parties have not agreed that a penalty will be charged in case of default, then it is impossible to recover it.
Simultaneous recovery
All three types of sanctions are undoubtedly similar legal categories and are aimed at restoring violated contract terms. A sanction can be applied only in two cases:
- if expressly stated in the law;
- if sanctions are provided for by the contract.
There is no norm in normative acts that regulated the real possibility of applying immediately three sanctions for one violation. But it is absolutely certain that it is impossible to apply a penalty and a fine at the same time. The simultaneous collection of fines and forfeit is quite possible.
The simultaneous collection of fines and penalties is also a dubious action, although there is no direct prohibition in the legislation. However, the Aircraft Resolution No. 7 of 03/07/2016 contains a statement that only one sanction for non-payment of a debt amount can be applied to a debtor - a fine (fixed amount) or a periodic chargeable charge.
Difference
What is the difference between a penalty and a penalty? Despite the similarity of all three types of sanctions, nevertheless, these concepts are not identical.
Features:
Category | Penny | Forfeit |
What agreements may appear | Only in transactions with payment and financial relations | In any agreements |
What can be expressed | Extremely dynamic, expressed in% with increasing effect, and the size depends on the number of days of delay | May be fixed or expressed in% |
Calculation procedure | Tied to calendar calculus | Always fixed at time of delay |
The difference between the penalty and the penalty is that the last sanction is an operational form of responsibility and comes immediately after the violation.
Fine and fine - what are the differences?
First of all, the difference is that the fine appears not only in civil matters, but also in administrative and criminal law. Penalty - exclusively in civil relations.
Other differences:
Category | Penny | Fine |
Accrual methodology | Accrued until the debt is fully repaid | A one-time charge |
Justification | Must be specified in the contract | May be provided for in normative acts and deducted to the budget |
Accruals | More often calculated in% | Has a specific size |
What is the difference between a penalty and a fine? The penalty always has an increasing progression depending on the period of overdue debt. The penalty and the penalty are designed to fix the fact of violation, and are not tied to the time period of non-payment.
Interest on borrowed money
The law provides for the possibility of requiring the debtor to pay interest for the unlawful withholding of funds. The amount of such losses can be determined in the contract itself or calculated taking into account the key rate of the BR. Interest on use - this is compensation that is paid by the debtor to the creditor for using other people's funds.
What is the difference between interest and interest? In that, if the contract provides for a penalty for failure to fulfill monetary obligations, then% for their use shall not be recoverable.
If both sanctions are provided for in the contract, then the courts are guided by the principle that the plaintiff must choose only one sanction, without even proving the damage, if such an obligation is not provided for in the contract. The plaintiff is also assigned the right to choose% if the contractual penalty is lower than the refinancing rate. Such interest is accrued solely on the amount of the principal debt.
Indemnification
In the Civil Code there is such a thing as compensation for losses that arose as a result of non-fulfillment or improper fulfillment of obligations. A clear definition is given in article 15 of the Civil Code and, according to its provisions, are subject to compensation:
- expenses incurred by the person in the process of restoring his violated right (real damage);
- lost profit.
If we correlate penalties and compensation for losses, then the first measures are aimed at covering losses, but if this amount is not enough, then the party has the right to demand compensation for real damage and / or lost profit. Simply put, damages are a special kind of forfeit.
What is the difference between a penalty and a penalty under 44-FZ?
This law regulates the complex of relations between suppliers and customers in the field of meeting the needs of municipal and state entities, budget organizations.
The normative act was created with the aim of conducting transparent procurements, to prevent corruption and other abuses. In addition to the description of the procedure for concluding state (municipal) contracts, the law describes the procedure for calculating penalties for failure to fulfill obligations under the contract.
Improper performance of the contract
How does the penalty differ from the penalty under the Law No. 44-FZ? According to the regulatory enactment, a party to a contract whose legitimate interests have been violated may require the following compensations:
- payment of forfeit;
- payment of losses incurred.
The law requires preliminary preparation of the claim, which can be made the very next day after the delay has begun to fulfill the terms of the agreement. The document outlines the essence of the claims and the calculation of penalties.
Government Contract Sanctions
The key interest rate of the Central Bank of the Russian Federation in the amount of 1/300 is used to charge interest. The calculation is carried out according to a simple formula: the sum of monetary unfulfilled obligations X 1/300 X for the number of days of delay in which even holidays and weekends are included.
How does a fine in the form of a fine differ from a fine in the form of a penalty? According to Law No. 44, a fine must be prescribed in the contract and set exclusively in a fixed figure. It is not allowed to set a fine as a percentage of the outstanding obligation.
Today, a fine of 10% is imposed for the total amount of the supply contract, the amount of which is up to 3 million rubles, 5% for the amount from 3 to 50 million rubles, and so on. The larger the contract amount, the lower the penalty.
For purchases of SONCO and NSR, their sizes are provided, for example, if the contract amount is more than 10 million rubles - 1%, for agreements up to 3 million rubles - 3%.
Fines are also provided for customers. For failure to fulfill obligations, the municipal (state) enterprise is obliged to pay a fine of 1 thousand rubles, if the total amount of the contract does not exceed 3 million rubles, if the amount is higher than 100 million rubles, the fine is 100 thousand rubles.
A sanction plug is provided for transactions for which a violation of obligations cannot be expressed in value terms and for “increase” purchases.
How does the penalty differ from interest for use? Under Law 44-FZ, no retention of forfeits is provided for state contracts. However, the parties are not deprived of the right to establish a penalty by agreement.