Calculation of the penalty Art 395 GK. Interest on borrowed money. Calculation of the amount of interest

The use of other people's money provides for the obligation to return the principal amount of the debt and the possibility of collecting interest. Other people's money, which is in arrears for a certain time, could serve and bring profit to the person to whom they belong. From this principle follows the possibility of recovering a penalty, a fine or interest from the debtor. This is provided for by law, as well as the calculation of interest for the use of a debt amount. Consider the legislative framework for the collection of interest and examples of calculations.

All about the use of other people's financial resources

In the Civil Code of the Russian Federation, Article 395 “Responsibility for non-fulfillment of a monetary obligation”, guarantees are prescribed for a person whose money is illegally withheld. Thus, the deadline for the return of the borrowed amount, violation of payments for the goods received under the contract, enrichment due to the retention of other people's funds and other similar cases may be violated.

This is an additional penalty in the form of a percentage of the total debt can be indirect insurance from evading debt repayment. The borrower, knowing that debt requirements will rise, will put more effort into the diligent performance of his obligations.

So, according to Art. 395, you can sue an unscrupulous counterparty and recover from him the amount for using your money.

Calculation principles defined by law

The calculation must be made in accordance with the rules established by law. First of all, interest is charged on the day the debt is paid unless there are exceptions provided by law and other legal regulations. Secondly, the calculation of interest is based on the bank refinancing rate of the Central Bank of the Russian Federation at the time of payment of the debt amount. And if the case went to court, then they take into account the percentage of refinancing on the day the court makes a decision or on the date of the lawsuit filed.

Where can I quickly calculate the amount of interest for using other people's money for my case? Many legal sites have a special calculator, which calculates this data online. You only need to enter the initial information, such as the amount owed, the delay in days and the refinancing rate. You can use this calculator to check your calculations.

True, in court, the final figure from the online calculation cannot be considered as a qualitative basis for collecting additional money from the borrower for using other people's funds. Must have detailed and transparent calculation which will be carefully checked. In the case of filing a lawsuit in court, you will also need to draw up a written calculation made on paper or Excel.

How interest is calculated on the use of other people's money

As mentioned earlier, to calculate the monetary requirements for using other people's money, you need to know several components:

• rate of the Central Bank of the Russian Federation;
• the amount of debt in arrears;
• delay in calendar days.

How to determine the refinancing rate of the Central Bank of the Russian Federation for calculation?

If we talk about the refinancing rate, then during the delay period it can change several times. The principle of its determination for carrying out calculations is specified in the Decree of the Plenums of the Supreme Supreme and Arbitration Courts of the Russian Federation dated October 8, 1998 No. 13/14. This regulatory document determines that in the event of a change in the refinancing rate during the delay period, it is advisable to take as a basis the value that is closest to all the values ​​of the rate for this period. This average value is used for the calculation.

For example, delay for 210 days, during which the refinancing rate took the following values: 7.5%, 7.8%, 8%. Based on these data, it is advisable to take the value of 7.8%, which is closest to both the first and last values.

Formula and calculation example

Speaking about the direct calculation of the desired value for collection, you need to take the following formula:

Interest amount = Debt * Rate of the Central Bank of the Russian Federation / 360 / (banking days) * Delay in days.

It is worth considering an example of calculating interest for the use of other people's money in specific numbers.

• the debt in arrears is 100,000 rubles;
• The RF refinancing rate is set at 7.8% (as in the example above);
• The delay was 210 calendar days.

We calculate the amount of interest in stages, breaking the large formula into several short formulas:

The amount of interest for the year \u003d 100,000 rubles * 7.8% \u003d 7,800 rubles.,

Amount of interest for 1 day = RUB 7,800/ 360 (banking days) \u003d 21.67 rubles. ,

The amount of interest for the period of delay = 21.67 rubles. * 210 k.d. = 4,550 rubles.,

or calculating in one formula:

The amount of interest = 100,000 rubles. * 7.8%/ 360 bank. days * 210 k.d. = 4,550 rubles.

So, the debtor of 100,000 rubles, which is overdue by 210 days, will have to return an additional penalty of 4,550 rubles in addition to the principal amount.

Complaint and money claim

The calculation may result in a small value in ruble terms if the debt is small and the delay was not so many days. Even if the result of the additional penalty in monetary terms is small or even insignificant in your opinion, still include it in the claim. Since the general the amount of the claim may include many small claims, such as non-pecuniary damage, payment for the services of a representative, forfeit, which ultimately add up a tangible amount.

At the discretion of the court, the amount may be reduced if the figure obtained as a result of the calculations is disproportionately greater than the consequences of the violation of the monetary obligation. Thus, the court will use Art. 333 of the Civil Code of the Russian Federation.

Lack of money from the debtor is not an argument for non-payment of principal and interest. The sequence of payments stipulates that the debtor must first repay the principal debt, after which other payments will be credited as the amount of interest for the use of other people's funds.

Using these principles and formulas, you can easily calculate the final figure to be collected. Such a detailed calculation will also satisfy the proceedings in court, and you can indicate the amount to be recovered in the statement of claim, and when considering the case, provide a complete calculation in formulas in writing or in print.

At the Central Bank rate online with the latest changes 2019

This calculator will help calculate the penalty for late payment of the debt. This penalty interest is calculated from the date when the debtor was obliged to make payment until the date of actual payment of the debt or presentation of claims in court. It can be used in case of violation of the terms of payment of funds under any monetary contractual obligations, contracts, agreements, or in case of untimely execution of a court decision.

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 are 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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In this article we will talk about the consequences of untimely fulfillment of a debt obligation - those that they are presented by the Civil Code of Russia. We will also tell you in detail about how to calculate interest for using other people's money.

Letter of the law

All the information we need is contained in Art. 395. Consider what the Civil Code says about interest for the use of other people's money:

• In the event that any person unlawfully withholds other people's funds, evades their reimbursement to the lender or is late with the return of the debt, interest is additionally charged on the amount of his loan, which is also obligatory to be paid. Their size is determined by the current key rate of the Central Bank for the current period (from 5 to 17%). The announced rules are valid if the agreement between the creditor and the credited does not provide for a different amount of these interest for the use of other people's money.
• If the losses incurred by the lender due to the untimely repayment of the debt to him are greater than the amount of interest from the previous paragraph, then he has every right to demand from the borrower the full repayment of his losses.
• Accrual of interest for the use of other people's funds is carried out inclusively until the day the full amount is returned to the creditor, unless a debt obligation agreement or other legislative acts imply a different period.
• If the agreement between the lender and the borrower stipulates a penalty for improper performance of this agreement or complete disregard for it, then the interest from the first paragraph is not recovered from the debtor. Given the fact that there are no other conditions in the contractual document specifically regarding this circumstance.
• The calculation of compound interest for the use of other people's funds (the addition of interest on interest) is not allowed under this article, unless this fact is previously introduced by an agreement or other legislative act.
• If the amount of accrued interest clearly does not correspond to the severity of the violation of the debt obligation, then the court, at the request of the borrower, may reduce it to more reasonable limits. However, even in this case, the interest for using other people's funds should not be lower than those specified in the first paragraph - established at a fixed rate for loans of the Central Bank of the Russian Federation.

Now let's move on to calculating such a fine and the information necessary for this.

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

In order to use the provisions of the voiced article of the Civil Code of the Russian Federation in a real case, it is necessary to determine the following points:

• start of interest calculation;
• end date of interest accrual;
• the amount of the interest rate;
• calculation procedure.

Let's analyze each of the points in detail.

Start of penalty

Art. 191 of the Civil Code prescribes to start accruing interest for the use of other people's funds on the next day after the date when, according to the agreement, the loan must be repaid.

If we consider this on a specific example: Ivanov A.B. under an IOU he was obliged to return a certain amount to Smirnov S.S. on August 5, 2017. However, the borrower did not fulfill his obligation. Hence Smirnov S.S. has the right to claim interest for the use of other people's funds from August 6, 2017.

Completion of interest calculation

The second paragraph of the Decree of the Plenum of the Supreme Courts of the Russian Federation (SC and Arbitration) No. 13/14 proclaims that interest for late repayment of the loan is accrued until a specific date - the date when the creditee has fully repaid his debt. Unless an agreement or other legislative act sets a different time limit.

Continuing to consider our example, let's say that Ivanov A.B. returned the loan to Smirnov S.S. September 2, 2017. Therefore, the creditor is entitled to claim interest from his debtor for the period August 6 - September 2, 2017 inclusive.

Interest rate

Article 395 (p. 1) specifically establishes the amount of the penalty - interest for the use of other people's money. It corresponds to the rate of the Central Bank of Russia on the day when the debt was actually repaid. In this case, the same rate applies that is set for the region where the debtor-individual lives, or the borrower-legal entity is registered.

Clause 51 of the Resolution of the Plenum of the Supreme Courts No. 6/8, in order to eliminate some inconsistencies that arise when reading clause 1 of Article 395 of the Civil Code, prescribes that the amount of accrued interest should be equal to the current refinancing rate set by the Central Bank of the Russian Federation for commercial banking organizations on credit resources. The easiest way to find out about its size is on the official website of the Central Bank of Russia.

Let's go back to our example. Since June 2017, the Central Bank of the Russian Federation has set the key rate at 9% per annum. Therefore, Ivanov A.B. will pay interest to its creditor, taking into account this amount.

Calculation of interest on arrears

Decree No. 13/14 of the Plenum of the Supreme Courts of the Russian Federation prescribes that when taking into account interest at the rate of the Central Bank of the Russian Federation, 360 days in a year are assumed by default, and 30 days in a month from here.

From this we can derive the following convenient formula:

P \u003d (SR x D x BH) / 36,000. Explanation:

P - the amount of interest for the untimely return of the borrowed amount.

SR is the refinancing rate set by the Central Bank.

D is the amount of the debt.

BH - the number of days of delay, including the one when the debt was directly repaid in full to the creditor.

36,000 - 360 days a year, multiplied by an indicator that shows a share of one percent.

Practical Calculation Example

Let's make some clarifications to the example that was presented throughout the article, namely, the amount that Ivanov A.B. borrowed from Smirnov S.S. Let it be 100 thousand rubles. Now we have all the information to substitute in the formula:

D = 100,000 rubles.

We substitute these numbers into the calculation formula:

(9 x 100,000 x 28) / 36,000 = 700.

From here we get that Ivanov A.B. at the time of repayment of the debt to Smirnov C.S. for a delay in payment of 28 days, he must pay the total amount to the creditor 100,700 rubles (100,000 + 700).

In this article, we looked at one of the easiest examples of calculating interest for late performance of a debt obligation. In some cases, it is complicated by partial repayments of the debt, as well as monthly remuneration payments to the creditor for the loan. It is better to carry out such calculations not on your own, but with the help of numerous online calculators presented on the Web.

Untimely provision of the amount borrowed, unless the loan agreement provides for a different condition, is punishable by the accrual of interest for the retention of other people's money for each day overdue under the agreement. Remember that this penalty is accrued up to the full repayment of the debt obligation to the lender.