Money

Bank interest for the use of other people's money. Interest on borrowed money. Calculation of the amount of interest

Individuals and legal entities, by law, have the opportunity to collect interest for the use of other people's money. In this article we will talk about what interest is for using other people's money, when interest can be collected, how to calculate it correctly.

What is interest on borrowed money

To understand what interest is on borrowed money, you must first understand what it means to "use other people's money." The answer to the question of what constitutes the use of other people's money is contained in the text of paragraph 1 of Art. 395 of the Civil Code of the Russian Federation. This situation occurs if a person:

unlawfully withholds someone's money;
evades the return of previously received funds;
does not return on time the money received unreasonably;
does not return in due time the funds received by their unjustified savings.

Now you can deal with the issue of collecting interest. In all the cases mentioned above, the person who had the funds is obliged not only to return them, but to pay interest on the amount of this money - this will be the interest for using other people's money.

How is the interest rate for the use of other people's money determined?

Important! If in the agreement between individuals or legal entities participating in a dispute on the collection of interest for the use of other people's money, the amount of interest was agreed in advance for such a case, it is this amount of interest that is taken into account.

In general, if the interest is not established for a particular case by law, the amount of interest at which compensation for the use of money will be calculated is determined by the current discount rate of interest of a banking institution (as of the date of fulfillment of a monetary obligation or its corresponding part) located:

at the place of permanent residence of the creditor (individual);
at the location of the creditor (legal entity).

The court may take into account the rate of the bank on the date of filing the statement of claim or on the date of the court decision on the considered case.

Characteristics of interest for the use of other people's money

In accordance with judicial practice and the content of the rule of law we are considering, we can characterize the percentage for using other people's money as follows:

Interest can be demanded for the use of money. You cannot appeal to Art. 395 of the Civil Code of the Russian Federation in cases where an exchange agreement or any other agreement is signed that does not involve the payment of money as a way to fulfill an obligation under the agreement.
In order to be able to collect interest for the use of funds, it is necessary to declare that the defendant uses the money unlawfully - he received them unreasonably, does not return or pay them on time, and withholds without the right to storage. The reference date (calendar) must be stated, that is, the day from which the use of the plaintiff's funds became unlawful, but when the defendant refused to return them and continued to use them for his own benefit.
The plaintiff must take all possible pre-trial methods to return his money - to demand payment of funds from the defendant, send claims to him. If the plaintiff did not demand the return of funds or deliberately did not mention their return, the court will not decide in his favor. It is important that the defendant actually shied away from returning the money.
If we are talking about the return of interest for the use of money issued under a loan agreement, appeal to Art. 395 of the Civil Code of the Russian Federation is impossible - in this case, the norm of Art. 809 of the Civil Code of the Russian Federation.
The plaintiff has the right to demand the recovery of interest for the use of his money in a lawsuit in which the main claim is the return of unjust enrichment.

In what cases it is possible to collect interest for the use of other people's money

The plaintiff has the opportunity to demand payment of interest for the misuse of his money in the following cases:

If the debtor did not fulfill (or performed improperly) the obligations stipulated in the contract on time to pay a certain amount of money (or to return them).
If earlier the court decided to recover funds from the defendant, but he did not comply with the court decision and did not pay the money to the plaintiff.
If there is an unjust enrichment of the defendant at the expense of the plaintiff (if there are no legal grounds or provisions of the contract that allow the money to be withheld).

How to calculate interest on borrowed money

The Supreme and Arbitration Court of Russia established the following rules for calculating the amount of interest for the misuse of other people's money:

For calculations, a year is assumed to be 360 days.
To calculate interest in rubles, the discount rate of the Central Bank of Russia should be taken as a basis.
If the interest is calculated in a foreign currency, the weighted average interest rate on foreign currency loans is taken into account.
If the plaintiff specifies the amount of the stated claims during the trial, the rate of the Central Bank of the Russian Federation on the day the court makes the decision is taken into account. Otherwise, on the day of filing the claim.

The scheme for calculating the interest rate for the illegal use of other people's money is as follows:

To determine the interest for 1 day of using money, the interest rate accepted for calculation is divided by 360 calendar days.
To calculate the percentage in monetary terms for the use of money, the amount of money that the defendant must return is then multiplied by the percentage for 1 day of using the money.
To obtain the amount that must be demanded from the defendant in court, we multiply the percentage in monetary terms for 1 day of using the money by the number of days during which he used other people's money without legal grounds.

An example of calculating the percentage for using other people's money

Ivanov A.A. had until 2.07.2017 return Nikiforova 15,000,000 rubles. The money was not returned, Nikiforov sued 25.06.2018 (the rate of the Central Bank of the Russian Federation at that time was 8.25% , days of delay - 357 ).

For 1 day, the percentage will be: 8.25% / 360 days = 0.0229%

For 1 day, the interest in monetary terms will be: RUB 15,000,000 x 0.0229% \u003d 3,435 rubles.

In total, interest can be charged: 3 435 rub. x 357 d. \u003d 1,226,295 rubles.

Expert opinion on the issue of how to collect interest for the use of other people's money

Lawyers draw attention to the fact that the initiation of legal proceedings on the collection of interest for the use of other people's money can be carried out to satisfy the basic requirements of the plaintiff or additional requirements. That is, if the defendant unjustly enriched himself at the expense of the plaintiff, the second has the right to file a claim for the recovery of the amount of unjust enrichment from him (based on the provisions of Article 1107 of the Civil Code of the Russian Federation), plus interest for the use of his money (based on Article 395 of the Civil Code of the Russian Federation) , which he owned here, without having the right to do so.

The article will help to calculate the delay, determine the percentage for using other people's money according to.

The seller (contractor) is interested in the fact that the buyer (customer) fulfills his monetary obligation in a timely manner. In the event of a delay in payment, the seller (buyer) will be interested not only in the payment by the counterparty of his debt, but also in the recovery of sanctions from him for the delay in payment.

The seller (contractor), in case of delay in payment by the buyer (customer), may apply the following measures to the violator:

collect interest for non-fulfillment of a monetary obligation (clause 1);
collect a penalty for the delay in the fulfillment of a monetary obligation (clause 1);
recover damages due to late payment (clause 1);
to foreclose on the goods transferred to the buyer and unpaid (clause 1, clause 5);
demand the return of the transferred goods (clause 2).

General provisions on the procedure for the application and on the amount of these sanctions are contained in the Civil Code of the Russian Federation. At the same time, some of these provisions of the law allow specify in the contract. In case of delay in payment, the seller (contractor) will be interested in recovering from the counterparty the largest possible amount of sanctions for late payment for the goods (work). At the same time, the seller (contractor) may establish in the contract a specific type of sanctions from those provided for in the law, the collection of which is most in his interests.

Consequently, when agreeing on the text of the contract, the task of the seller (contractor) will be to prescribe in the contract the most favorable conditions for the seller (contractor) on the collection of sanctions for late payment.

So, one of the types of security for a monetary obligation is the possibility of collecting additional interest. How to calculate the interest for using other people's money if the debt is more than two years old and the refinancing rate has changed repeatedly?

They are called " interest on the use of other people's money in case of delay in payment”, are established and collected only if the party violates the terms of the contract (delay in payment for the delivery of goods, unreasonable evasion of debt repayment, unjust enrichment, etc.). According to the general principles of law, these funds are a kind of guarantee that the money will be paid on time, because no one wants to bear extra expenses.

Interest under Article 395 of the Civil Code of the Russian Federation can be collected as additional sanctions, in addition to those prescribed in the obligation itself. This is the responsibility for non-compliance with the terms of the contract, established by law.

That is, if your counterparty is in no hurry to pay off the debt, then his liability can be “weighted” by calculating the interest for using your money and presenting them in court for collection.

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Article 395. Liability for failure to fulfill a monetary obligation
1. For the use of other people's funds as a result of their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or saving at the expense of another person, interest on the amount of these funds shall be paid. The amount of interest is determined by the existing place of residence of the creditor, and if the creditor is a legal entity, at its location discount rate of bank interest on the date of fulfillment of the monetary obligation or its corresponding part. When recovering a debt in court, the court may satisfy the creditor's claim, based on the discount rate of bank interest on the day the claim is filed or on the day the decision is made. These rules apply unless a different amount of interest is established by law or by agreement.
2. If the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in excess of this amount.
3. Interest for the use of other people's funds shall be charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the calculation of interest by law, other legal acts or an agreement.
4. In the event that an agreement of the parties provides for a penalty for non-fulfillment or improper fulfillment of a monetary obligation, the interest provided for in this article shall not be recoverable, unless otherwise provided by law or the contract.
5. Accrual of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled in the course of entrepreneurial activities by the parties, the use of compound interest is not allowed, unless otherwise provided by law or contract.
6. If the amount of interest payable is clearly disproportionate to the consequences of the breach of obligation, the court, at the request of the debtor, has the right to reduce the interest provided for by the agreement, but not less than to the amount determined on the basis of the rate specified in paragraph 1 of this article.

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From August 1, 2016, to calculate interest on borrowed funds, you will need to use the key rate of the Central Bank of the Russian Federation

The amount of interest for the use of other people's funds will need to be calculated on the basis of the one that was in effect during specific periods of delay. The corresponding amendments to, introduced by Federal Law No. 315-FZ of July 3, 2016, will enter into force on August 1, 2016.

From August 1, 2016, interest will need to be determined differently. When calculating, it will be necessary to take into account not the average rates on deposits, but the key rate of the Central Bank of the Russian Federation, which is valid in the relevant periods. At the same time, a different amount of interest may still be established by law or agreement.

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Interest rate, how can you calculate the percentage for using other people's money?

The amount of interest may be specified in the contract. If the interest rate is not specified in the agreement, then it is determined by average bank interest rates on deposits of individuals at the place of residence of the creditor - an individual (location of the creditor - organization), which are published on the website of the Bank of Russia.

If non-payments have been brought to trial, then the percentage of the bank rate on the day the court verdict is issued or on the date the claim is filed with the court is taken into account.

To calculate the amount of interest for the use of other people's money, a special calculator is used. It is available on many legal sites, the visitor of the resource just needs to enter the amount of overdue debt and the bank rate.

Meanwhile, it should be borne in mind that the courts, as a rule, require a detailed written calculation, and not a ready-made amount, since it always requires verification. Therefore, if you need a calculation to file a claim, it is better to know the interest calculation algorithm, make the calculations yourself on paper or in Excel, and use the calculator for calculating interest for using other people's money for control.

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FORMULA and EXAMPLE of calculating interest under Article 395 of the Civil Code of the Russian Federation for the use of other people's funds

To calculate interest under Article 395 of the Civil Code of the Russian Federation, you need to know that:

The amount of the debt must be indicated with VAT.
Note: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 22, 2009 No. 5451/09 in case N A50-6981 / 2008-G-10
The day of payment of funds is included during the period of delay in the performance of a monetary obligation.
Note: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2014 No. 13222/13 in case No. A40-107594 / 12-47-1003.
Overdue period must be determined on the basis of 30 days in a month and 360 days in a year, or in calendar days

So, in order to correctly calculate the interest, you need to know the amount of overdue debt, the number of days of delay and the average bank rate.

The Supreme and Higher Arbitration Courts of the Russian Federation in the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds" explained that in the event of a change in banking interest during the delay, it is advisable to apply the value that is closest to all rates in the specified period. For example, the debt amounted to 200 days, during which the bank interest was 7%, 8% and 8.5%. Based on the above recommendations, the calculation should be based on a rate of 8%.

From the Decree of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14:

2. When calculating the annual interest payable at the refinancing rate of the Central Bank of the Russian Federation, the number of days in a year (month) is taken equal to, respectively 360 and 30 days, unless otherwise established by agreement of the parties, the rules binding on the parties, as well as the customs of business.

So, the calculation of interest for the use of other people's money is made according to the formula:

Interest amount

Amount of debt

Average Bank Rate valid during the period of delay

Number of days overdue

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Calculation of the amount of interest for the use of other people's money

The formula for calculating interest can be given in the following example.

Initial data for calculation:

The amount of debt under the loan agreement in Kirov is 100,000 rubles.
Weighted Average Bank Rate in the Volga Federal District - published on the website of the Central Bank of the Russian Federation
Overdue period from 01/01/2015 to 08/31/2015

Calculation of interest for the use of other people's funds in accordance with Article 395 of the Civil Code of the Russian Federation

With a debt of 100,000 rubles. (Volga Federal District)
interest for the use of other people's money is:

from 01/01/2015 to 05/31/2015 (151 days): 100,000 × 151 × 8.25% / 360 = 3,460.42 rubles.
from 06/01/2015 to 06/14/2015 (14 days): 100,000 × 14 × 11.15% / 360 = 433.61 rubles.
from 06/15/2015 to 07/14/2015 (30 days): 100,000 × 30 × 11.16% / 360 = 930 rubles.
from 07/15/2015 to 08/16/2015 (33 days): 100,000 × 33 × 10.14% / 360 = 929.50 rubles.
from 08/17/2015 to 08/31/2015 (15 days): 100,000 × 15 × 10.12% / 360 = 421.67 rubles.

Total: RUB 6,175.20

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CALCULATOR for calculating interest for the use of other people's funds under Article 395 of the Civil Code of the Russian Federation

It should be borne in mind that if the calculated amount of money interest for the use of other people's money will clearly exceed the results of a violation of a monetary obligation, the court is allowed to reduce them at its own discretion, i.e. pity the violator.

At the same time, the courts refer to, which allows you to reduce the amount of interest.

According to general rules, the lack of money from the debtor cannot be a reason for releasing him from paying the debt. And if we talk about the order of repayment, then the funds under Art. 395 of the Civil Code of the Russian Federation are credited only after the amount of the principal debt is paid. Besides, the claimant has the right to accrue them up to the day the obligations under the contract are fulfilled.

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At WHAT RATE to calculate interest for the use of other people's money

The seller (contractor), when agreeing on the text of the contract, may indicate in the contract the rate at which interest will be charged in case of late payment. For example, by key rate of the Bank of Russia. This is due to the fact that otherwise the debtor would essentially benefit from his misbehavior by illegally holding someone else's money and actually borrowing at a rate several times lower than if he took a loan from a bank. In other words, at present it is impossible to get a loan anywhere at a rate lower than the key rate of the Bank of Russia. Such a condition will discipline the counterparty to fulfill its monetary obligations in good faith.

The key rate of the Central Bank of the Russian Federation is currently the main indicator of the direction of the monetary policy of the Bank of Russia.

However, it must be borne in mind that the period of overdue debt can be quite long, up to several years. And the key rate itself was introduced only on September 13, 2013. In addition, its size has constantly changed over time, both up and down. For this reason, the application of a key rate for the entire period of delinquency may result in the lender receiving less interest than if he were charging interest at average rates on deposits of individuals. To avoid such situations, you need to weigh the possible risks of collecting interest at the key rate of the Central Bank of the Russian Federation in every possible way and choose the best option for yourself.

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For the convenience of persons interested in the calculation of interest under Art. 395 of the Civil Code of the Russian Federation, we have developed a calculator for calculating interest for using other people's funds, in which interest rates change automatically. Now, in order to correctly calculate the amount of interest, you will only need to enter the amount of debt, the period of delay and the location of the creditor. Using the calculator on the website of the Lex Group of Law Companies, you can be sure that interest is calculated correctly according to the refinancing rate of the Central Bank of the Russian Federation. Rates and calculator formulas for online calculation are updated in a timely manner.

When collecting interest under Article 395 of the Civil Code of the Russian Federation, it is necessary to bear in mind the following.

If your counterparty does not pay the debt, you have the opportunity to recover from him, in addition to the principal debt, a penalty for violation of payment terms. However, the possibility of recovery and the amount of the penalty are not always determined by the contract. Moreover, the parties may generally be in non-contractual relations, if, for example, we are talking about unjust enrichment. Is it possible to apply any other penalties to the debtor?

The answer to this question is contained in Article 395 of the Civil Code of the Russian Federation, according to which the creditor has the right to collect from the debtor, in addition to the principal debt, interest for the use of other people's funds.

At the same time, it is important for the creditor to take into account that interest for the use of other people's funds can be collected up to the day the debt is actually paid. In case of recovery of interest in court, the creditor has the right to file a claim for the recovery of interest in a fixed amount of money calculated on the day of the decision, as well as interest for the period from the day following the day of the decision to the day the debt is actually paid. Moreover, the recovery of a contractual penalty and interest for the use of other people's funds for the same period is unacceptable.

The amount of interest is determined by the average rates of bank interest on deposits of individuals existing at the place of residence of the creditor or, if the creditor is a legal entity, at its location published by the Bank of Russia and taking place in the relevant periods.

It should also be noted that such a rule for calculating interest for the use of other people's funds is valid only from 06/01/2015. Until that time, the amount of interest was determined by the discount rate of bank interest existing at the place of residence of the creditor, and if the creditor is a legal entity, at its location.

Thus, we draw your attention to the fact that at present the calculation of interest under Article 395 of the Civil Code of the Russian Federation has become much more complicated. In order to calculate the amount of interest, it is necessary to take the average bank interest rates on deposits of individuals separately for different federal districts. It should also be taken into account that the rates change at least once a month, therefore, the lender needs to constantly monitor in order to determine what interest rate should be applied in a particular period of delay.

- You are a rather vulgar person, - Bender objected, - you love money more than necessary.
- Don't you like money? howled Ippolit Matveyevich in the voice of a flute.
- I do not like.
Why do you need sixty thousand?
- Out of principle!
(from the film "12 chairs")

Dozens of changes are made to the Tax Code of the Russian Federation not only in a year. The Civil Code also does not go unnoticed. We often pay attention to the novelties of corporate legislation, today we will talk about more ordinary things - interest for the delay in fulfilling a financial obligation. Article 395 of the Civil Code of the Russian Federation is known not only to lawyers, but also to entrepreneurs, because the rule on the need to pay penalties based on the refinancing rate has long been taken for granted. Changes to the procedure for calculating interest under Article 395 of the Civil Code of the Russian Federation were made twice, with a difference of less than a year.

In order to simplify your life and protect you from mistakes in such trifles that affect building relationships with counterparties when formulating the terms of contracts, we will clarify some points regarding the calculation of the so-called "legitimate interest".

Interest for non-fulfillment of a financial obligation Art. 395 of the Civil Code of the Russian Federation.

From 06/01/2015 and, we dare to limit the period, until 03/24/2016. there was confusion in the application of this article, which was aggravated by the appearance of article 317.1 of the Civil Code of the Russian Federation. Federal Law of March 8, 2015 No. No. 42-FZ, a new procedure was introduced - interest under Art. 395 began to be calculated not on the basis of the refinancing rate, but in accordance with the "average rates" of bank interest on deposits of individuals at the location of the creditor. Changes in the settlement procedure concerned legal relations that arose after June 1, 2015. The Bank of Russia monthly updated bank interest indicators for settlement under Art. 395 of the Civil Code of the Russian Federation, and for each period of delay, interest, if necessary, had to be calculated according to its indicator.

Obviously, this procedure was inconvenient, therefore, already from 08/01/2016. interest under Art. 395 of the Civil Code of the Russian Federation, it is prescribed to calculate at the key rate of the Bank of Russia that was in force in the relevant periods. Let us clarify that in fact the key rate has replaced the refinancing rate, so we can safely say that there has been a return to the old procedure for calculating interest for the use of other people's funds, which was valid until 06/01/2015.

Let us denote the periods in which different rules for calculating interest for non-fulfillment of a monetary obligation under Art. 395 CC:

for periods arising until 31.05.2015, - we consider at the current refinancing rate;

from 01.06.2015 to 31.07.2016- at average bank interest rates for individuals, incl. and for non-fulfillment of a monetary obligation arising on the basis of a contract concluded before 01.06.2015. of the agreement, in respect of periods of delay that took place from 06/01/2015, and

from 01.08.2016. to the present - at the key rate of the Bank of Russia.

However, a different amount of interest can be set in the contract itself, which we recommend doing to simplify your life in case you need to use Art. 395 GK. When establishing a different rate in the contract, it must be indicated that we are talking specifically about interest under Art. 395 of the Civil Code of the Russian Federation, otherwise we can talk about a penalty, which excludes the application of Art. 395, unless otherwise stipulated by the parties in the contract (clause 4, article 395 of the Civil Code of the Russian Federation). Previously, there was no such indication in the Civil Code, which means that the calculation of interest for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation) and the penalty (Article 330 of the Civil Code of the Russian Federation) did not contradict each other.

Keep in mind that in a lawsuit the amount recovered penalties and interest for non-fulfillment of a monetary obligation may be reduced by the court in case of disproportionate amount of the collected penalty to the consequences of non-fulfillment of the obligation in accordance with Art. 333 of the Civil Code of the Russian Federation. The limits for reducing the amount of interest charged for the use of other people's funds are established by paragraph 6 of Art. 395 of the Civil Code of the Russian Federation: the court cannot reduce the interest under Art. 395 of the Civil Code of the Russian Federation, if the creditor applied their calculation established in the code itself (that is, based on the key rate). If the agreement provides for a different procedure for calculating interest, the court may reduce the amount recovered at the request of the debtor, but the possibility of reduction is limited to the amount of interest that would have been obtained by applying the calculation specified in paragraph 1 of Art. 395 of the Civil Code of the Russian Federation. A similar restriction in terms of reducing the amount of the penalty under Art. 333 of the Civil Code of the Russian Federation would give even more guarantees of discipline in terms of fulfilling obligations and understanding whether it makes sense to collect penalties in court.

Now let's move on to article 317.1 of the Civil Code of the Russian Federation

This article "debuted" as a new norm of the Civil Code of the Russian Federation from 06/01/2015 until 08/01/2016. was perceived as a "distorting mirror" of the 395th article. From August 01, 2016, its new edition is valid:

In cases where a law or an agreement provides that interest is charged on the amount of a monetary obligation for the period of use of funds, the amount of interest is determined by the key rate of the Bank of Russia (legal interest) in force in the relevant periods, unless a different amount of interest is established by law or agreement.

Clause 1 of Art. 317.1 of the Civil Code of the Russian Federation

Interest under Art. 317.1 of the Civil Code of the Russian Federation apply to relations, the participants of which are both commercial organizations, individual entrepreneurs, and individuals (from 08/01/2016) and are charged only on monetary obligations in the following order:

from 06/01/2015 to 07/31/2016- "automatically", except in cases where non-application is provided for by law or an agreement, regardless of the violation by the parties of their obligations under the agreement at the refinancing rate,

from 01.08.2016 only if it is provided for by law or contract, at the key rate.

Monetary obligations arise, first of all, from buyers (customers). The seller (executor) may also be obliged to pay these interest, but only in the event of an obligation to return the previously received advance payment. The very fact of receiving an advance will not be the basis for the emergence of a monetary obligation and Art. 317.1 does not need to be applied (Letter of the Ministry of Finance of the Russian Federation dated December 9, 2015 N 03-03-РЗ / 67486). In the same letter dated December 9, 2015. The Ministry of Finance, among other things, explained that the interest accrued under Art. 317.1 automatically or by agreement of the parties are subject to accounting by the taxpayer as part of non-operating income (expenses) when determining the tax base for corporate income tax.

After the appearance of this norm, the law enforcer for some reason began to consider the right to charge interest under Art. 317.1 of the Civil Code of the Russian Federation, as a duty and for a long time, pointed out to business entities that the application of this rule is mandatory and it is possible to refuse "automatically" accrued interest only by forgiving the debt, and the moment interest is accrued under Art. 317.1 must be determined by the moment of completion of the provision of services / performance of work. The presence of conditions on deferment is by no means an obstacle to the calculation of interest. Everyone understood that this position is devoid of common sense, but they could not always prove the opposite.

From 08/01/2016 The parties decide on their own whether to apply Art. 317.1 of the Civil Code of the Russian Federation to their relations or not, and not convulsively exclude its effect in contracts. And interest is charged, if applied, from the moment when the buyer (customer) had a monetary obligation to pay for the goods (work, service), but he did not pay (there was a delay).

One unpleasant remark: according to the text of the law amending the wording of Art. 317.1, does not contain rules on the effect of the article in time, which means in the period from 06/01/2015. to 31.07.2016 interest will be calculated "automatically" according to the version of the norm that was in force during the specified period. So, if all the contracts have been redone, then this is not in vain. Let's say more - it's better to play it safe and "neutralize" this article for the period from 06/01/2015. to 31.07.2016 in contracts in which this was not done - use clause 2 of Art. 425 of the Civil Code of the Russian Federation and extend the cancellation/limitation of Article 317.1 to monetary obligations that arose (and were fulfilled) in the past.

There is still a risk that, without paying attention to Art. 317.1 of the Civil Code of the Russian Federation in the performance of an agreement concluded between 01.06.2015. until 31.07.2016, one day a bona fide buyer (customer) may find a claim for payment of interest on a monetary obligation. For example: when paying for goods (works, services) with a deferred payment from the amount of 10 million, the buyer (customer) must pay 2,260 rubles per day. And for this, apparently, you do not need to violate the terms of payment!

Also, one of the parties under the agreement may face additional income tax charges due to the “mandatory” accrual of legal interest. Of course, the amounts are small and they will not become a reason for an audit, but during an audit that has already begun, this will turn into an unpleasant addition to the requirements of the tax authority.

The main purpose of Art. 317.1 of the Civil Code of the Russian Federation is the establishment of fees for the use of funds, and this is its fundamental difference from Art. 395 of the Civil Code of the Russian Federation. In the Civil Code of the Russian Federation, these articles have always been in different chapters: Art. 317.1 in the chapter "Fulfillment of obligations", and art. 395 in the chapter "Responsibility for violation of obligations" of the Civil Code of the Russian Federation.

Plenum of the Supreme Court by its Resolution No. finally stopped all disputes regarding the legal nature of Articles 395 and 317.1 of the Civil Code of the Russian Federation, indicating in paragraph 53 that, in contrast to the interest provided for in paragraph 1 of Article 395 of the Civil Code of the Russian Federation, the interest established by Article 317.1 of the Civil Code of the Russian Federation, are not a measure of responsibility, but represent a payment for the use of funds and accrual from the beginning of the delay of interest under Art. 395 of the Civil Code of the Russian Federation does not affect the calculation of interest under Article 317.1 of the Civil Code of the Russian Federation.

Having stipulated in the agreement the interest both under Article 317.1 and Article 395 of the Civil Code of the Russian Federation, calculated at the key rate (currently 10%), you will “credit” your unscrupulous counterparty under the agreement at least at a rate of 20% per annum. And if we also provide in the contract for the simultaneous existence of a penalty under Art. 394 and percent under Art. 395 of the Civil Code, then your counterparty is unlikely to risk delaying the fulfillment of its obligations under the contract. Taking into account the existence of the possibility of reducing the penalty in court (Article 333 of the Civil Code) and recalculation at the key interest rate under Article 395 of the Civil Code, Art. 317.1 The Civil Code may act as a kind of guarantee that you will receive such a fee for the use of funds that will comply with the conditions of the loan product market. Moreover, when determining the priority of repayment of claims under a monetary obligation, the amount of interest under 317.1 will be collected earlier than the amount of the principal debt.

For the effective use of Art. 317.1 include in the contract a clause, for example, of the following content:

Interest provided for in Article 317.1. Civil Code of the Russian Federation are charged on monetary obligations not fulfilled within the period established by the contract. Interest is accrued from the beginning of the delay in the fulfillment of a monetary obligation and until the moment of its actual fulfillment. Accrual from the beginning of the delay of interest under Art. 395 of the Civil Code of the Russian Federation and (or) penalties does not affect the calculation of interest under Article 317.1 of the Civil Code of the Russian Federation

Greater detail and detail regarding the application and calculation of interest under Art. 317.1 of the Civil Code, as well as the ability to prescribe in the contract their own rules for the application and the amount of civil liability measures, make it necessary to work out the terms of the contracts in more detail and carefully, impose more independence on the parties in terms of discussing the terms of cooperation, allow you to foresee your own option and carefully consider all possible consequences.

If your debtor unlawfully withholds funds, evades their return or otherwise delays in paying them, he must pay interest on the amount of the debt (clause 1, article 395 of the Civil Code of the Russian Federation). We will tell you about the calculation of interest under Article 395 of the Civil Code of the Russian Federation in our consultation.

How many days to calculate interest

If the contract with the counterparty does not specify a specific procedure for determining the days of delay, the period for which interest is calculated in accordance with 395 of the Civil Code of the Russian Federation is calculated in the following order: from the day following the day when the monetary obligation was to be fulfilled in accordance with the terms of the contract, up to and including the date of payment of the debt.

What interest rate to apply

Unless a different amount of interest is established by law or an agreement, data on the key rate of the Central Bank of the Russian Federation that was in force in the relevant periods are used in the calculation. Thus, from September 19, 2016, the key rate is 10% per annum (Information from the Bank of Russia dated September 16, 2016).

These are new rules for interest under 395 of the Civil Code of the Russian Federation. And they are valid from 08/01/2016.

From 06/01/2015 to the specified date, when calculating interest, the average bank interest rates on deposits of individuals in force at the location of the organization were used. These rates were published by the Central Bank of the Russian Federation.

Calculation of interest according to 395 of the Civil Code of the Russian Federation: formula

P \u003d W * C / 365 (366) * D,

where P - interest collected from the debtor under Art. 395 of the Civil Code of the Russian Federation;

Z - debt on a monetary obligation, not repaid on time;

C - the key rate of the Central Bank of the Russian Federation, which was in effect in the period of delay (in%);

D is the number of days for which interest is charged.

The number of days in the formula 365 or 366 depends on whether the year for which interest is calculated is or not.

Recovery of a penalty and interest on 395 at the same time?

It is possible that the contract with the counterparty provides that for non-fulfillment or improper fulfillment of a monetary obligation, a penalty is collected from the debtor. In this case, the interest under Art. 395 of the Civil Code of the Russian Federation are not subject to payment (clause 4 of article 395 of the Civil Code of the Russian Federation). However, by agreement of the parties, it can be provided that, in addition to the penalty, interest is also paid. Then the debtor will have to answer twice: to pay both a penalty and interest.

At the same time, what measure of responsibility to provide for the debtor - the recovery of a contractual penalty or interest under Article 395 of the Civil Code of the Russian Federation, the parties determine by mutual agreement, fixing the relevant provisions in the contract between themselves or in an additional agreement to it. Naturally, the parties to the contract may provide for the payment of both the contractual penalty and interest of 395 at the same time.

The algorithm for calculating the penalty according to 395 of the Civil Code of the Russian Federation is not specified. This means that the procedure for determining the amount of the penalty in the contract must be specified.

How to calculate interest on 395 st. Civil Code of the Russian Federation: an example

On August 31, 2016, contrary to the terms of the agreement between Seller LLC and Buyer LLC, the latter did not pay off its debt in the amount of 250,000 rubles. Payment for the goods was made only on 01/13/2017. The contract does not contain separate provisions on the procedure for calculating interest for late payment. Therefore, the general procedure provided for in Art. 395 of the Civil Code of the Russian Federation.

So, for the period from 09/01/2016 to 01/13/2017 LLC "Buyer" must pay LLC "Seller" interest in the amount of 9,285.22 rubles.

Imagine the calculation in the table:

Calculation period	Amount of days	Amount of debt, rub.	Key rate of the Central Bank of the Russian Federation	Payment	Amount %, rub.
01.09.2016 - 18.09.2016	18	250 000,00	10,5%	250 000,00 * 10,5% / 366 * 18	1 290,98
19.09.2016 - 31.12.2016	104	250 000,00	10%	250 000,00 * 10% / 366 * 104	7 103,83
01.01.2017 - 13.01.2017	13	250 000,00	10%	250 000,00 * 10% / 365 * 13	890,41
Total:	135	X	X	X	9 285,22