Calculation of interest for the use of strangers. Interest on borrowed money
Interest under Art. 395 - legal nature
Actually on the calculation of the penalty under Art. 395 of the Civil Code of the Russian Federation is not necessary, because this article contains a rule on the calculation of interest on timely outstanding monetary debts. Interest on the use of other people's money, in contrast to the forfeit, which primarily represents a measure of ensuring the fulfillment of an obligation, and secondly, responsibility, is one of the manifestations of the retribution of private property relations (the use of other people's values \u200b\u200bmust be paid). At the same time, interest accrued under Art. 395, a liability function is also inherent, since they are charged only on overdue debts (Clause 1, Article 395 of the Civil Code of the Russian Federation). However, in everyday life, due to the punitive function and the method of calculating interest (per day of delay), which is similar to fines, in this case, more often they talk about calculating the penalty for 395 of the Civil Code of the Russian Federation.
In addition, Art. 395 illustrates the dispositiveness of civil law, because the interest it offers is applicable only if the parties:
- Did not establish a different amount of interest on the use of money in the contract,
- We did not agree on a penalty for delaying monetary debt. This rule is effective from 01.06.2016, in accordance with paragraph 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 24, 2016 No. 7, approved. The Presidium of the RF Armed Forces on November 25, 2015 (hereinafter referred to as Resolution No. 7).
How to determine the amount of interest under Art. 395
In 2015-2017, the reference norm on the amount of interest was repeatedly changed, and when calculating them, it is the rule that is in force at the time of accrual (paragraph 48 of Resolution No. 7). Accordingly, choosing the size of interest for calculation, it is necessary to be guided by various editions of the Civil Code of the Russian Federation:
- Until May 31, 2015, the discount rate of bank interest at the place of residence (for the legal entity - location) of the creditor was charged.
- From 01/06/2015 to 07/31/2016 the interest rate was used, determined by the average bank interest rates on deposits of individuals existing at the place of residence (for the legal entity - location) of the creditor.
- Starting from 01.08.2016, the Bank of Russia key rate applicable at the relevant periods is applied.
All listed values \u200b\u200bare determined and published by the Bank of Russia.
How to calculate interest under Art. 395 (calculation features, formula)
The above values \u200b\u200bare annual interest rates. However, interest on the use of money is more convenient to calculate by the day, and therefore there is a need to include in the formula the calculation of interest accrued on the amount of debt daily. Moreover, the rule of Clause 3 of the Resolution of the Plenum of the RF Armed Forces No. 13 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of 08/10/1998 required that during the calculation the year should be recognized equal to 360 days, and the month - 30 days.
Debt size × Interest rate (see the previous section of the article) / 360 × Number of days of delay
However, subsequently this paragraph was canceled by Resolution No. 7, although no alternative was proposed to it, as a result of which it is desirable to use a slightly modified formula:
Debt size × Interest rate / Actual number of days in a year × Number of days of delay
Thus, in the general formula for calculating the penalty under article 395 of the Civil Code of the Russian Federation, it is necessary to correct:
- current interest rate (subject to changes in paragraph 1 of article 395 of the Civil Code of the Russian Federation);
- the number of days in a year (360 - until 03/24/2016 and 365 or 366 - after).
Determining the interest calculation period
The initial and final moments of interest calculation are determined according to the following rules:
- They begin to accrue the next day after the expiration of the obligation fulfillment period (Article 191 of the Civil Code of the Russian Federation).
- In claims for a refund, the starting point is the day when the defendant found out about the need to return the funds (paragraphs 51, 58 of Resolution No. 7).
- The final moment of accrual is considered the moment of actual payment (paragraph 3 of article 395 of the Civil Code of the Russian Federation).
- To make a decision on the collection of interest, the court needs to calculate the day the decision is made (paragraph 48 of resolution No. 7).
- Interest for non-fulfillment of a settlement agreement is calculated from the day following the last day of its voluntary execution (paragraph 52 of resolution No. 7).
Given the constant change in the interest rate in the calculation, in fact, it will have to be done by dividing it into several - according to the time periods of the relevant rate.
For instance:
- the first period of interest calculation under Art. 395 for the amount of debt overdue from 07/01/2017, there will be a period from 07/01/2017 to 09/18/2017 (the validity rate of 9%, according to information from the Bank of Russia dated 06/16/2017);
- the second will be the period from 09/19/2017 to 10/30/2017 (the interest rate is 8.5%, according to the information of the Bank of Russia dated 06.16.2017), etc.
Thus, the measure referred to in everyday use as “forfeit under 395 of the Civil Code of the Russian Federation” is in reality a measure of property liability and, at the same time, a fee for using someone else's money. In calculating interest, it is necessary to take into account changes in Art. 395, which took place since 2015, because they influenced the calculation formula, the choice of interest rate, and the very possibility of calculating interest. The sample calculation of the penalty under Art. 395 of the Civil Code of the Russian Federation can be downloaded on our website.
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Until 06/01/2015: refinancing rate From 06/01/2015: the average bank interest rate on deposits of individuals C 01/08/2016: key rate |
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Amount due 0, including VAT 0%
Delay period from 0 to 0: 0 (days)
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Interest on Article 395 of the Civil Code of the Russian Federation: calculation rules
The formula for calculating interest on borrowed money used in this calculator takes into account the provisions of Article 395 of the Civil Code of the Russian Federation, as well as the clarification of the joint decision of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 13/14 of October 08, 1998.
The calculations of the calculator are fully consistent with the calculations on the official website of the Supreme Arbitration Court of the Russian Federation.
What should be taken into account when collecting interest on borrowed money?
When collecting interest under Article 395 of the Civil Code of the Russian Federation, it is necessary to take into account that:
- interest on borrowed money is not a form of penalty, but the provisions of Article 333 of the Civil Code of the Russian Federation on reducing the penalty apply to them;
- interest is accrued until the actual performance of the obligation;
- interest under Article 395 of the Civil Code of the Russian Federation is accrued not only as part of contractual obligations, but also as part of non-contractual, if they are monetary in nature;
- interest on borrowed money in relation to losses is offset: you can recover the difference between actual losses and interest under article 395 of the Civil Code of the Russian Federation.
Article 395. Responsibility for failure to fulfill a monetary obligation
Previous Edition:
1. For the use of other people's money due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or savings at the expense of another person, interest on the amount of these funds shall be paid. The amount of interest is determined by the lender existing at the place of residence, and if the lender is a legal entity, at the place of location, the bank interest rate at the date of fulfillment of the monetary obligation or its corresponding part. When recovering a debt in a judicial proceeding, the court may satisfy the creditor's claim based on the bank interest rate on the day the lawsuit is filed or on the day the decision is made. These rules apply, unless otherwise specified by law or contract.
New revision (2015):
1. For the use of other people's money due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or savings 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 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 the average bank interest rates on deposits of individuals that took place in relevant periods. These rules apply, unless otherwise specified by law or contract.
2. If the losses incurred by the creditor in the unlawful use of his money 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 the loss in part that exceeds this amount.
3. Interest on the use of borrowed funds shall be charged on the day the amount of these funds is paid to the creditor, if a shorter period is not established for the calculation of interest by law, other legal acts or an agreement.
Revision of 07/03/2016:
1. In cases of unlawful retention of funds, evasion of their return, other delay in their payment, interest on the amount of the debt shall be payable. The amount of interest is determined by the Bank of Russia key rate that was in effect in the relevant periods. These rules apply, unless otherwise specified by law or contract.
(Clause 1 as amended by Federal Law dated 03.07.2016 N 315-ФЗ)
2. If the losses incurred by the creditor in the unlawful use of his money 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 the loss in part that exceeds this amount.
3. Interest on the use of borrowed funds shall be charged on the day the amount of these funds is paid to the creditor, if a shorter period is not established for the calculation of interest by law, other legal acts or an agreement.
4. In the event that by agreement of the parties a penalty has been provided 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 contract.
(Clause 4 is introduced by the Federal Law of 08.03.2015 N 42-ФЗ)
5. The calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations performed by the parties in carrying out business activities, the use of compound interest is not allowed, unless otherwise provided by law or contract.
(Clause 5 is introduced by the Federal Law of 08.03.2015 N 42-ФЗ)
6. If the amount of interest payable is clearly disproportionate to the consequences of the violation of the obligation, the court at the request of the debtor has the right to reduce the interest stipulated by the contract, but not less than to the amount determined on the basis of the rate specified in paragraph 1 of this article.
At the rate of the Central Bank online with the latest changes 2019
This Calculator will help to calculate the penalty for late payment of debt. These penalties are calculated from the date on which the debtor was obligated to pay on the day the debt was actually paid or claims were filed in court. It can be applied in case of violation of the terms of payment of funds for any monetary contractual obligations, contracts, agreements or in case of untimely execution of a court decision.
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Clear Print Version Calculation of interest on borrowed money under Article 395 of the Civil Code of the Russian FederationWith the amount of debt: For currency, the calculator independently determines the interest rate only from 06/01/2015. Indicate what interest rate to apply for the period until 06/01/2015: Calculation of interest on a monetary obligation under Art. 317.1 of the Civil Code With the amount of debt: From to (days): p × × / \u003d Introduced as the first day of delay. That is, the last day of the payment term falls on the day off. But according to the rules of Art. 193 of the Civil Code of the Russian Federation, if the last day of the term falls on a non-working day, the closest next working day is considered the expiration day. The next working day is. And the first day of delay, respectively, (Art. 191 of the Civil Code of the Russian Federation). The result of the calculation of this calculator is for reference only and is not official information. Responsibility for failure to fulfill a monetary obligation 1. In cases of unlawful retention of funds, evasion of their return, other delay in their payment, interest on the amount of the debt shall be payable. The amount of interest is determined by the Bank of Russia key rate that was in effect in the relevant periods. These rules apply if a different amount of interest is not established by law or contract (as amended by the Federal Law of July 3, 2016 N 315-ФЗ - Meeting of the Legislation of the Russian Federation, 2016, N 27, Art. 4248). 2. If the losses incurred by the creditor in the unlawful use of his money 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 the loss in part that exceeds this amount. 3. Interest on the use of borrowed funds shall be charged on the day the amount of these funds is paid to the creditor, if a shorter period is not established for the calculation of interest by law, other legal acts or an agreement. 4. In the event that by agreement of the parties a penalty has been provided for non-fulfillment or improper performance of a monetary obligation, the interest provided for in this article shall not be recovered, unless otherwise provided by law or by agreement (clause 4 is introduced by Federal Law of March 8, 2015 N 42-ФЗ - Meeting of the legislation of the Russian Federation, 2015, N 10, Article 1412). 5. The calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations performed by the parties in entrepreneurial activities, the use of compound interest is not allowed, unless otherwise provided by law or by agreement (clause 5 is introduced by the Federal Law of March 8, 2015 N 42-ФЗ - Collection of Legislation of the Russian Federation, 2015, N 10, v. 1412). 6. If the amount of interest payable is clearly disproportionate to the consequences of the breach of the obligation, the court at the request of the debtor has the right to reduce the interest stipulated by the contract, but not less than to the amount determined on the basis of the rate specified in paragraph 1 of this article (paragraph 6 was introduced by the Federal Law of March 8 2015 N 42-FZ - Meeting of the legislation of the Russian Federation, 2015, N 10, Article 1412). Interest on monetary obligation 1. In cases where the law or the agreement stipulates that interest is subject to accrual on the amount of the monetary obligation for the period of using the money, the interest rate is determined by the Bank of Russia key rate (legal interest) that was in force during the respective periods, unless a different interest rate is established by law or the agreement . 2. The condition of the obligation, which provides for the accrual of interest on interest, is void, with the exception of the conditions of obligations arising from bank deposit agreements or from agreements related to the implementation of entrepreneurial activities by the parties. |
For lawyers, a convenient service works on the Internet - a calculator for calculating interest on the use of other people's money under Article 395 of the Civil Code of the Russian Federation. Use for free.
The online calculator for calculating the interest paid for the unlawful withholding of money or evading payment thereof complies with the Civil Code,. The knowledge base of the calculator includes all changes in the interest rate by region, which was set monthly by the Bank of Russia, as well as:
- refinancing rate, if the delay has begun before June 1, 2015;
- if the delay lasted after August 1, 2016
The calculator for calculating interest on borrowed money will tell you:
- what formula is used to calculate the penalty under Art. 395 of the Civil Code of the Russian Federation;
- how in 2019 to calculate late fees in accordance with this article.
According to the rules relevant for 2019, the calculation of interest under Article 395 of the Civil Code of the Russian Federation takes into account their accrual from the date following the day on which payment was due.
Example.If the debtor was to make the payment before January 11, 2019, the delay period will begin on January 12, 2019.
Other calculators for lawyers
What formulas are used in calculating interest under article 395 of the Civil Code of the Russian Federation using a calculator
The calculator takes into account all changes in the interest rate for the regions that the Bank of Russia monthly set, as well as the refinancing rate if the delay began before June 1, 2015, and the key rate if the delay lasted after August 1, 2016.
The general formula for calculating interest under Article 395 of the Civil Code of the Russian Federation: multiply the amount of the principal debt by the number of calendar days of delay in payment and the current key rate indicator and divide by the number of days in a year.
For example: a customer’s debt to a contractor amounted to 100,000 rubles. The customer delayed the payment by 7 calendar days. During the delay period, the key rate was 7.5%. The year is not a leap year, it has 365 days. Then the penalties under Article 395 will amount to 143 rubles 84 kopecks.
Please note that this method is used to determine the penalty interest for one-time payments. If a debt has arisen in respect of periodic payments, interest on arrears is determined for each such payment separately up to the day of debt repayment.
Also note that a different percentage may be indicated in the contract and should be used in the calculation.
How to calculate interest under article 395 of the Civil Code of the Russian Federation for periodic payments
According to Russian law, the amount of the penalty for periodic payments (for the use of services, credit, rental equipment or real estate, etc.) is formed in the form of an amount for all payment periods.
Example.A six-month excavator rental contract was concluded from July 25, 2018 to January 25, 2019 at a price of 30,000 rubles per month. Under the terms of the contract, the lessee is required to pay the rent a month in advance no later than the 25th day of the current month. However, he paid only for August and September; he evaded the remaining payments. To make using the calculator the calculation of interest under Article 395 of the Civil Code of the Russian Federation, it is necessary to add up several amounts using the following formula:
- Interest from 30,000 rubles. for the delay period from September 25, 2018 to February 4, 2019 (the approximate date of the statement of claim).
- Interest from 30,000 rubles. for the period from 10/25/2018 to 02/04/2019.
- Interest from 30,000 rubles. for the period from 11/25/2018 to 02/04/2019.
- Interest from 30,000 rubles. for the period from 12/25/2018 to 02/04/2019.
For each period of delay, the amount of the penalty is calculated, the amount of interest will be the sum of the interest of the penalty for the use or retention of other people's money accrued for each period.
How to determine penalty interest if the rate has changed
On January 1, 2016, the refinancing rate was equated to the key one. From that moment on, the penalty interest under article 395 of the Civil Code of the Russian Federation began to be determined according to the new rules: the current key rate or indicator that corresponds to the delay period should be indicated in the calculator. Relying on the refinancing rate is necessary only when determining the penalty for late payments under old contracts. However, complex calculation cases may arise.
For example, the contractor completed the work and delivered it on time, July 5, 2018. The date of payment was tied to the moment of acceptance of the results. On July 5, the customer accepted the work, but did not pay. The amount of the principal debt is 100,000 rubles. The delay lasted for several months, during which time the key rate changed. The customer transferred the money only on December 6, 2018. Interest must be calculated for the period from July 6 (the first day of delay) to December 6. It is 154 days. When calculating interest under article 395 of the Civil Code of the Russian Federation, you need to use the general formula and rely on the rate that was in force in the given period. The calculation may look like this:
- From July 6 to September 16 (73 days), the key rate is 7.25%. Then: 100,000 x 73 x 7.25% / 365 \u003d 1,450 rubles.
- From September 17 to December 6 (81 days), the key rate is 7.5%. Then: 100,000 x 81 x 7.5% / 365 \u003d 1,664 rubles 38 kopecks.
- Add up the first and second results. For the delay, the customer must pay 3 114 rubles 63 kopecks.
What rules work when calculating interest under Art. 395, if the date of repayment of the debt is not indicated
Article 810 of the Civil Code of the Russian Federation obliges the borrower to repay the loan money on time and in the manner prescribed by the loan agreement. If the agreement does not contain a specific date, month and year of repayment of the loan amount, then the Law imposes an obligation on the borrower to fully repay the debt within thirty days from the date the lender makes the relevant claims.
Example. The borrower borrowed 100,000 rubles from the lender against a receipt that does not specify a date for the return of funds. Some time later, on August 15, the creditor sent the debtor a demand for repayment of the debt. In such a situation, the first day of delay will be considered not August 15, but 15.08 plus 31 days, that is September 16, since September 15 is the last day of loan repayment without interest on 395 Civil Code of the Russian Federation.
The parties to the loan agreement have the right to independently determine the amount of the penalty for late performance of monetary obligations. According to Part 4 of Art. 395 of the Civil Code of the Russian Federation in the event that the parties themselves indicated the amount of fines for non-performance (improper performance) by one of the participants in the contract of their monetary obligations, then interest is calculated on the basis of the agreement.
However, on the basis of h. 6 Article. 395 of the Civil Code of the Russian Federation, the defendant has the right to petition the court to reduce the amount of interest if they are disproportionate to the consequences of non-payment of arrears.
In this regard, when submitting a statement of claim, it is worth considering a possible reduction by the judge of the claims and, if there is a clear discrepancy between the amount of interest and the total debt, you should independently reduce the amount of interest, thereby saving on the amount of state duty.
The Law on Amendments to Part One of the Civil Code of the Russian Federation introduced significant changes to Article 395 of the Civil Code of the Russian Federation, which changed the procedure for calculating interest on the use of borrowed funds. Please note that the law on amendments to Art. 395 of the Civil Code of the Russian Federation comes into force on June 01, 2015. Accordingly, Article 395 of the Civil Code of the Russian Federation applies to relations arising after the indicated date. Relationships that arose earlier are subject to the order that existed before the changes. Since, purely technically, the procedure for calculating interest has become more complicated, it became necessary to quickly and efficiently calculate interest for using borrowed money. For a quick calculation of interest on borrowed money, you can use the interest calculator under Art. 395 of the Civil Code of the Russian Federation, which will help you quickly and efficiently calculate the interest under Art. 395 of the Civil Code . Calculator 395:
Under the old wording, Article 395 of the Civil Code of the Russian Federation was much easier to calculate interest on borrowed money. With the new edition of the article, calculating interest without a special percent calculator will be difficult and long. These difficulties are associated with the fact that interest on the use of funds (as liability for breach of obligation) will be determined by the average rates of bank interest on deposits of individuals published by the Bank of Russia and in relevant periods. These rules apply, unless otherwise specified by law or contract.
You can see the average bank interest rates on deposits of individuals using the Consultant system or on the website of the Central Bank of Russia. On the other hand, the law provides that the amount of interest on borrowed money will be determined by agreement or law. If an adequate interest condition is determined in the contract that is comparable with the degree of violation of the obligation, the conditions on interest stipulated by the contract will accordingly apply. Moreover, when it comes to the conditions acceptable for the application of the interest rate provided for by the agreement, in fact, these are the contractual conditions under which there is no reason to apply paragraph 6 of Art. 395 of the Civil Code of the Russian Federation, which states that if the amount of interest payable is clearly disproportionate to the consequences of the breach of the obligation, the court, at the request of the debtor, has the right to reduce the interest stipulated by the contract, but not less than to the amount determined on the basis of the rate specified in clause 1 of Article 395 RF. Therefore, I recommend to simplify the life of myself and my creditors according to judicial requirements, to establish adequate interest rates for non-fulfillment of monetary obligations, for example, within the refinancing rate. This will simplify the task of calculating interest in court.
If the interest exceeds the bank rate (it will be clearly disproportionate), then the court will have a reason to recount the interest in accordance with paragraph 1 of Art. 395 of the Civil Code of the Russian Federation (in other words, “use” the interest calculator for 395 above). And if initially an agreement would establish an adequate amount of interest, then this could simplify and possibly speed up the trial. In any case, the percent calculator under Art. 395 of the Civil Code of the Russian Federation. This percent calculator under Art. 395 of the Civil Code of the Russian Federation is suitable for both a court of general jurisdiction and an arbitration court. Who does not know, a magistrate is part of the system of courts of general jurisdiction.
In addition, Art. 317.1 of the Civil Code of the Russian Federation, which refers to interest
Let's see what is the difference between Art. 395 and 317.1 of the Civil Code of the Russian Federation? Article 317.1 of the Civil Code of the Russian Federation is placed in the section "Fulfillment of Obligations", and Art. 395 of the Civil Code of the Russian Federation is placed in the section "Responsibility for violation of obligations". Therefore, the interest under Art. 317.1 of the Civil Code of the Russian Federation are charged for the lawful use of funds between commercial organizations. The question arises, how much Art. 317.1 and how much it will apply. I believe that the widespread use of Art. 317.1 will not have, but interest on the use of other people's money as responsibility for default, provided for in Art. 395 of the Civil Code, will be widely used. The legislative novels also include the establishment of the procedure in accordance with which interest on the use of borrowed funds is charged on the day the amount of these funds is paid to the creditor (clause 3 of article 395). The prohibition of interest accrual in case a penalty is provided (clause 4 of article 395). Prohibition of interest on interest (compound interest) (paragraph 5 of article 395). These provisions apply unless otherwise provided by law or contract. In any case, the use of the Interest Calculator will simplify the calculation of interest under Art. 395 of the Civil Code of the Russian Federation.