Penalty forfeit is a measure of responsibility by which partners of economic relations regulate the proper performance of duties prescribed in contracts. When the dispute reaches the court, the plaintiff proves the validity of the claims with documentary evidence. The assignment of fines and fines is provided for at the legislative level under the Civil Code in article 394, paragraph 1. The act states that in case of failure to fulfill the obligations assumed, the penalty is intended to cover the loss incurred to the extent specified in Federal Law No. 51 or stipulated in the agreement.
Legislative argument
In order to reduce conflicts between business entities, existing laws regulate these relationships. Various tools have been developed that can help ensure the fulfillment of commitments. Penalties are determined according to the norms set forth in the Civil Code of the Russian Federation, Ch. 23. What constitutes a penalty is described in article No. 330. The nature of the formation and imposition of sanctions is also disclosed there.
Conclusions of leading figures
Civil law experts argue that the penalty as an element is a form of liability for legal entities and individuals for the deadlines that they undertook to fulfill by putting their signature on the agreement.
There is another opinion among the figures of jurisprudence; they indicate the characteristic features of the method as a kind of impact on the subject. Scientists suggest that the contractor will compare the benefit in fulfilling obligations with the loss from the penalty in case of violation of the clauses of the agreement.
According to the third position of economists, sanction combines its mission in two directions. Knowing about it, the counterparty successfully fulfills its obligations, the possibility of a fine reminds of responsibility to the partner. Here are just the actions of the mechanism for this case occurs if the borrower does not violate obligations, and liability arises in case of delay in time or other misconduct.
No matter what the scientists say, the penalty is a fine. The parties to the contract carry out penalties, settlements are performed by the creditor for his debtor in a derivative manner. The borrower transfers the amount of money to the partner with whom he entered into an agreement and violated its terms.
Classification and its criteria
Any punishment is necessary grounds. The penalty of the penalty is indicated by the Civil Code of the Russian Federation in article No. 330, revealing cases of formation:
- Contractual - establish in the concluded agreement. The text of the document shows the ways to ensure agreement with which the parties agree. Participants pre-determine the performance of actions by the debtor, indicate the size or methods of calculating interest in case of violations. It is impossible to recover a fine without written requirements.
- Legitimate - specified in the legal regulations, which provide for the size, interest or accrual methods.
- Mixed - include all acceptable methods for charging. In this case, they use legislative approvals, combine with the conditions described in the contract, comply with the rules of civil proceedings.
All types of forfeit (penalty in a separate example) are determined by the presence of criteria that will serve as the basis for settlements with the subsequent collection of the amount from the debtor.
What determines the size?
A market economy opposes fines from regulating laws. An agreement should be established on the basis of their calculation, where the parties stipulate in advance the extent of liability for violations without government intervention. So far, such requirements remain only the desire of the manufacturers, and the penalty is firmly present in the laws. Under current rules, the terms of the contract govern the setting of the amount of the penalty. This can be a fixed sum of money, interest accrued on a debt, or another method of payment selected.
What methods use
The main methods for determining penalties:
- A one-time payment, establish one total amount, or indicate the percentage accrued on the outstanding balance.
- For each delayed day, the debtor is obliged to pay a fine. The lender specified in the contract in advance how the calculation will be carried out, set a certain monetary value or take the loss at the refinancing rate.
- Penalties - the type of penalties is similar to withholding solid amounts. The difference is large, this method is used by lenders for gross violations of agreements.
Claims for the amount of a fine or a fine may be appealed in court. If the debtor makes reasonable arguments that the calculation of the penalty forfeit unlawfully overestimated, his claim is satisfied.
Economic concepts
Economists in their literature consider the penalty as an opportunity to cover the damage caused by the counterparty’s optionality. They have their own views on the collection data, which are distributed in the classification with the name:
- credit;
- exceptional;
- free kick;
- alternative.
Each type of sanction has its own characteristics.
Part of debt coverage
In case of a forfeit of credit, the penalty is charged on the amount of unpaid losses due to arrears. Suppose the buyer did not pay on time for the goods. The seller incurs losses in the amount of 120,000 rubles. He recovered a penalty equal to 30,000 rubles. The point in the further claim will be when the injured party demands compensation for the loss within 90,000 rubles. If less damage than a penalty is inflicted, recovery of losses is not provided, provided that the agreement or the law has no other provisions.
Exceptional Feature
When concluding a contract, it is necessary to take its points seriously, since many penalties occur in the order with which the participants voluntarily agreed. This applies to exceptional penalties when the text of the agreement determines to recover damages in the amounts stipulated by the parties. Therefore, based on the previous example, the payment of the penalty will occur exclusively in the amount of 30,000 rubles.
Characteristic signs
In the concept of alternative punishment, the lender himself determines the penalty. Again, provided that all requirements are described in the contract. The participant who incurred losses chooses the part that is most beneficial to him. It is determined only with the order of penalties, and in full will compensate the damage in any case, if the extent of the damage is proved in court.
Severe punishment
Debtors should beware of penalties. They are the most significant for the budget of an unscrupulous borrower. Under the terms of this type of punishment, it is allowed to demand full compensation from the debtor, not taking into account the accrued penalty.
To implement any of these sanctions, civil law requires the existence of conditions or the validity of an offense:
- the debtor acted or did nothing to not break the law and fulfill all the requirements in the contract;
- negative consequences appeared - losses;
- previous elements have a connection;
- debtor's fault.
There are no requirements in the law for the presence of all signs for liability. The violator could miss the deadline for the execution of certain actions, but the counterparty did not suffer losses. In this case, the violated conditions in the contract and the fault play an important role.
In what order do penalties occur?
The implementation of penalties depends on the definition of their type. All such conditions should be provided by the developers of the contract, and the signatory should carefully study each item. The haste from a quick reading of the clauses of the agreement affects when paying huge forfeits. When the developers themselves omit the details with the punishments, they are determined by the legislative norms of the Civil Code of the Russian Federation.
The lender needs to take into account that even the most correct agreement with all possible cases specified in it will not force the debtor to pay it unconditionally. The size of the penalty is quite substantial, it is received mainly by decision of the court. When submitting a statement of claim in the calculations and testimony clearly follow the contractual terms, without departing from the descriptions.
If a claim is indicated for the duration in terms of payment, they must be recorded in the agreement. The court does not accept allegations of allegations. For example, it seemed to the supplier that the consumer had delayed the payment too much. The time period for the receipt of money must be noted in the contract.
The legal authority requires the use of the peaceful resolution of a dispute. All methods for recovering losses should be undertaken if the partner has committed violations. But only a court decision can protect rights in case of violation. To do this, you must:
- file a lawsuit;
- provide documentary evidence;
- indicate a forfeit acceptable for a particular case.
The court can reduce the amount of the forfeit, this provision is indicated by the Civil Code of the Russian Federation in article No. 333. It states that the judge may recognize the forfeit as disproportionate, but this condition does not reduce the liability of the debtor. The legislative act emphasizes that during the consideration of the conflict it is necessary to obtain an answer to the question whether the creditor tried to obtain unjustified benefits.