58. ENFORCEMENT. PENALTY

Ensuring fulfillment of obligations - these are measures designed to protect the interests of the creditor from improper performance of the obligation by the debtor and induce the debtor to fulfill the obligation by joining by force of law or contract to the main (main) obligation of an additional one.

Ways to ensure the fulfillment of obligations historically arose as a natural need for increased guarantees of the rights and interests of participants in legal obligations.

The main ways to ensure are: penalty; pledge; retention; guarantee; bank guarantee; deposit.

Ways to ensure the fulfillment of obligations are always property-based.

Ensuring the fulfillment of an obligation is an additional obligation in relation to the main one and therefore depends on it: in the event of the termination of the main obligation, the additional obligation also ceases.

The Importance of Enforcement is that it stimulates the debtor to fulfill his obligation to the creditor.

Penalty - the amount of money that the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the obligation by him in addition to the principal amount of the debt.

Types of penalty differ for the following reasons. According to the subject of the establishment of a penalty, there are legal (provided by law) and contractual (established by the parties to the contract) penalties; according to the method of calculating the amount of the penalty, the latter are divided into a penalty (determined as a percentage for each overdue day of fulfillment of the obligation) and a fine (a certain amount of money); Depending on the ratio of the creditor's right to recover a penalty and his right to compensation for damages, four types of penalty are distinguished:

a) credit (losses not covered by the penalty are recovered);

b) exceptional (only a penalty is collected, but not losses);

at) penalty (damages may be recovered in excess of the penalty);

d) alternative (the creditor has the right to recover either a penalty or damages).

A penalty is the most common way to ensure the fulfillment of an obligation in practice and performs two functions - measures to ensure the fulfillment of an obligation and sanctions for its improper fulfillment, that is, measures of property liability.

Rules for applying penalties. A legal penalty applies regardless of whether it was provided for by the parties in the contract. Its size can only be increased by agreement of the parties; a contractual penalty applies only if it is provided for by agreement of the parties, that is, an agreement on a penalty must always be made in writing; collection of a penalty from the debtor is possible only if there are grounds for his liability, since the penalty is not only a measure of securing an obligation, but also a measure of responsibility for its fulfillment; the debtor cannot be exempted from paying the penalty, but its amount may be reduced by the court if the penalty is disproportionate to the consequences of the violation of the obligation.

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