In the process of diverse economic relations, cases of unfair performance of obligations often arise. One of the common mechanisms for authorizing contractual relations is the application of appropriate penalties, the main types of which are forfeits, fines and penalties.
Forfeit, in accordance with applicable law, is a method of securing obligations. In this sense, it manifests itself in this way, along with a pledge, a guarantee, a deposit, and retention of property. Among the above types of security for obligations, the penalty is perhaps the most common way in economic practice. The definition of the penalty is given in Art. 330 of the Civil Code of the Russian Federation, where it is interpreted as the amount of money established by law, payable by the debtor to the creditor for failure to fulfill or improper performance of the stipulated contractual obligations.
A fairly common difficulty is the calculation of the penalty taking into account the specific circumstances of the failure to fulfill the contractual relationship. Here it is necessary to consider primarily the following. As a rule, the calculation of the penalty is made in accordance with the nature of those economic relations that were provided for by the contract or which are regulated by applicable law, if the contract is absent or does not provide for specific measures of responsibility for its improper performance. For example, for a delay in the execution of an order when performing services, a penalty is charged in accordance with the current law, namely, Art. 23 of the Law of the Russian Federation "On Protection of Consumer Rights". This norm provides that the penalty is paid at the rate of 1% of the price of the service for each day of delay. Accordingly, when filing a claim, it is necessary to accurately indicate the start date of the delay in the execution of the order and the end date.
The variety of forms of economic activity predetermines that there are quite a lot of forms of recovery and calculation of the amount of forfeit. For example, the calculation of the penalty on the basis of the refinancing rate involves knowledge of this parameter, which is set by the Central Bank. At the moment, in Russia the refinancing rate is 8% and reflects the percentage at which loans are issued. Using this parameter, it is possible to calculate the penalty for the most diverse types of contractual relations.
For example, the calculation of the penalty under the loan agreement assumes that the percentage of the penalty is equal to the current refinancing rate, unless otherwise specified in the contract itself. Here it is necessary to take into account the fact that if the exact loan term is not specified in the contract, then the calculation is based on the conditional adoption of the number of days in a month equal to 30, and the number of days in a year equal to 360.
Also, the loan forfeit is calculated by the value of the refinancing rate. The formula by which the percentage of the penalty will be determined is as follows: N = SD x D x STR, where:
N - the amount of the penalty, D - the number of days of delay, STR - the value of the refinancing rate.
When calculating tax penalties, the value 1/300 of the refinancing rate is used as the base value. Accordingly, the formula takes the form: N = SD x D x 1/300 x STR.
In accordance with Art. 424 of the Civil Code, a penalty is calculated under a supply contract; the same provision is used when calculating penalties for sales contracts. A feature of this provision is that it does not require a claim for termination of the contract. In order to claim the penalty, written evidence is enough that objectively shows that you have notified the contractor about the refusal of delivery. Such evidence can serve as receipts for sending registered letters, telegrams and other messages.