Most of the contents of the Civil Codeoccupy articles about obligations. It's no wonder, after all, our life is built on them: buying food in a store, traveling by public transport, paying for housing, wages are all examples of obligations. The provisions on them are fully regulated by the Civil Code of the Russian Federation. Part 1 establishes the basic obligations, including ways of protection.
Penalty - this is the way to ensureliabilities, and penalty for delay, default. Thus, the concept is used quite often, the provisions are contained in the Civil Code of the Russian Federation (Part 1). Meanwhile, it is not uncommon for a forfeit to be clearly high, significantly impair the rights of a party to obligations, or simply can not be paid on the basis of a financial situation. In this case, you need to reduce the penalty, but it's not so simple. First, it is necessary to clarify that the size of the forfeit is different - it can be based on the law (and will be applied even if the parties have not provided it) or on the contract (and here its size is not limited). In any case, the application of Article 333 of the Civil Code of the Russian Federation is necessary - it provides grounds for reducing the amount of the penalty.
Defined by law and, as a rule, acts inthose cases when the parties at the conclusion of the contract (even if oral) did not envisage a possible penalty. Its interest rate is quite small, and it will rarely be possible to claim that Article 333 of the Civil Code of the Russian Federation has been applied. Reduction of the forfeit determined by law is made in court quite rarely, as a rule, for two reasons:
- The amount of the penalty is higher than the principal amount.Conditionally, you entered into a contract for 50,000 rubles, but the money was not paid (as an obligated party). Less than 3 years have passed, and the creditor goes to court, claiming 50,000 rubles for you - the amount of the principal debt, and, say, 55,000 rubles - the amount of the penalty. Its size will be reduced by 5000 rubles.
- The size of the forfeit is not comparable with the violatedobligations. This is possible if your obligations were insignificant or broken only in a small part, and the penalty is imposed on the whole part of the debt or substantially higher than the damage you caused the creditor.
Penalty under the contract
The contractual penalty is the choice of the parties, andbecause its dimensions can be several times higher. In the event that the creditor has imposed severe conditions for the forfeit, and you simply had to agree to them, you can point out in court that article 333 of the Civil Code of the Russian Federation should be applied. Reducing the penalty, which is prohibitive, is more a rule than an exception. But it's worth mentioning: one of the fundamental principles of civil law is freedom of contract. If you agreed to a high percentage of forfeit, even if necessary, then be ready to pay it, if the court finds the point. The grounds for the reduction of contractual penalties are similar to those used for the penalty under the law. The difference is that the legal penalty is settled by the state, and therefore can not be recognized as disproportionate.
Another important point is the status of the debtor.If you, as a debtor, carry out entrepreneurial activities, then the court, by its own will, can not apply Article 333 of the Civil Code of the Russian Federation. Reduction of the forfeit must be justified by you in a separate petition. If the debtor is a simple individual, the court on its own initiative can reduce the size of the penalty, considering it too high.
Separate types of forfeit
The most dangerous and least reduced penaltyis that defined in the Law on the Protection of Consumer Rights. It is very high, but in view of the fact that such a penalty is recognized as a special penalty sanction, used in violation of consumer rights - it is extremely unlikely to reduce it. In this connection, article 333 of the Civil Code of the Russian Federation is practically not applied. Reduction of the penalty on its basis is made in the most exceptional cases, because the rights of the consumer (citizens, as a rule) are an important public interest, which is seriously protected by the state.
Remember that due to the amicable agreement and agreements between the parties you can not simply reduce the amount of the penalty, but exclude it altogether.