Коммерческое право. Неустойка (самое важное)

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Коммерческое право. Неустойка (самое важное)

Lecture notes, cheat sheets

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55. PENALTY

forfeit (fine, penalty interest) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the obligation, in particular in case of delay in performance (Article 330-333 of the Civil Code).

Depending on the grounds for establishing legal and contractual forfeit. The contractual penalty is established by the parties themselves, and if the contract does not contain conditions for a penalty, then this means the operation of a legal penalty, which does not depend on the will of the parties. Moreover, the parties cannot, by their agreement, reduce the size of the legal penalty (Article 332 of the Civil Code). However, if payable under Art. 521 of the Civil Code, the penalty is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty (Article 333 of the Civil Code). But, on the other hand, a small penalty in the conditions of inflation in the economy, bankruptcy of the debtor, etc. often loses its practical meaning.

The penalty finds its expression in a fine or penalty.

Штраф - a one-time chargeable penalty, determined in a fixed amount of money or as a percentage or other proportion to a certain value.

penalty - a penalty collected continuously, on an accrual basis for each day of delay (for example, 0,5% of the outstanding amount for each day of delay).

Since the general measure of civil liability is compensation for damages, from the point of view of the combination of a penalty and compensation for damages, four types of penalty are distinguished - set-off, penalty, exclusive and alternative:

1) credit allows the creditor, in addition to the forfeit, to demand compensation for losses in the part not covered by the forfeit;

2) penalty area (cumulative) entitles the creditor to demand compensation in full for the damages caused and, in addition, the payment of a penalty;

3) exceptional means the non-admission of compensation for losses in the part not covered by the penalty, i.e., eliminates the right of the creditor to recover losses;

4) alternative provides for the right of the creditor, depending on the situation, to recover either a penalty or damages.

The penalty is certainly convenient for the creditor in that in order to collect it, the creditor is not required to prove the existence and amount of losses caused to him. And at the same time, it is not secured by the debtor's funds, which means that there is a high risk of non-payment. Thus, each of the parties can assess in advance their interest in the proper performance of the obligation.

Since any type of penalty is a form of civil liability of the party, for this reason the debtor is exempted from paying the penalty if he proves that, by virtue of law or contract, he should be exempted from liability.

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