Calculation of interest for the use of strangers. Interest for using other people's funds
Interest under Art. 395 - legal nature
Actually about the calculation of the penalty under Art. 395 of the Civil Code of the Russian Federation is not necessary to speak, since this article contains a rule on the accrual of interest on unpaid monetary debts in a timely manner. Interest for the use of other people's money, in contrast to the penalty, which is primarily a measure of ensuring the fulfillment of an obligation, and secondly, of responsibility, is one of the manifestations of the retribution of private-law property relations (the use of other people's values must be paid). At the same time, the interest accrued under Art. 395, the function of responsibility is also inherent, since they are charged only on overdue debts (clause 1 of 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 (for the day of delay) similar to penalties, in this case, they often talk about calculating the penalty according to 395 of the Civil Code of the Russian Federation.
In addition, Art. 395 illustrates discretion civil law since the percentages offered by it are applicable only if the parties:
- Have not established a different amount of interest for the use of money in the contract,
- We did not agree on a forfeit for a delay in monetary debt. This rule is valid from 01.06.2016, in accordance with paragraph 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation of 24.03.2016 No. 7, approved. By the Presidium of the RF Armed Forces on November 25, 2015 (hereinafter - Resolution No. 7).
How to determine the amount of interest under Art. 395
In 2015-2017, the reference rule on the amount of interest was repeatedly changed, and when calculating them, it is the rule that is valid at the time of accrual (paragraph 48 of Resolution No. 7). Accordingly, when choosing the amount of interest for the calculation, it is necessary to be guided by various editions of the Civil Code of the Russian Federation:
- Until 31.05.2015 the discount rate was calculated bank interest at the place of residence (for a legal entity - location) of the creditor.
- From 01.06.2015 to 31.07.2016, the interest rate was used, determined by the average rates of bank interest on deposits individuals existing at the place of residence (for a legal entity - location) of the creditor.
- From 01.08.2016 applied key rate Bank of Russia, which operated in relevant periods.
All of the above values are determined and published by the Bank of Russia.
How to calculate interest under Art. 395 (calculation features, formula)
The above values are annual interest rates. However, it is more convenient to calculate interest for the use of money by days, in connection with which it becomes necessary to include in the formula the calculation of interest calculated on the amount of debt on a daily basis. At the same time, 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 the year in the calculation be considered equal to 360 days, and the month - 30 days.
Debt amount × Interest rate (see previous section of the article) / 360 × Number of days in delay
However, this paragraph was subsequently canceled by Resolution No. 7, although no alternative was proposed to it, as a result of which it is advisable to use a slightly modified formula:
Debt amount × Interest rate / Actual number of days per year × Number of days in arrears
Thus, in the general formula for calculating the forfeit according to Article 395 of the Civil Code of the Russian Federation, it is necessary to correct:
- the current interest rate (taking into account the changes in clause 1 of Art. 395 of the Civil Code of the Russian Federation);
- the number of days in a year (360 - before 03.24.2016 and 365 or 366 - after).
Determining the Interest Calculation Period
The initial and final moments of interest accrual are determined according to the following rules:
- They begin to accrue the next day after the expiration of the term for fulfilling the obligation (Article 191 of the Civil Code of the Russian Federation).
- For claims for the return of money, the initial moment is the day when the defendant learned about the need to return the money (paragraphs 51, 58 of Resolution No. 7).
- The final moment of accrual is the moment of actual payment (clause 3 of article 395 of the Civil Code of the Russian Federation).
- To make a decision on the recovery of interest, the court needs a calculation on the day of the decision (paragraph 48 of Resolution No. 7).
- Interest for non-fulfillment of the settlement agreement is calculated from the day following the last day of its voluntary fulfillment (clause 52 of Resolution No. 7).
Given the constant change interest rate in the calculation, in fact, it will have to be produced, dividing it into several - according to the time periods of the corresponding rate.
For example:
- the first period for calculating interest 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 period of the rate is 9%, according to the information of the Bank of Russia dated 06/16/2017);
- the second will be the period from September 19, 2017 to October 30, 2017 (the validity time of the rate is 8.5%, according to the information of the Bank of Russia dated June 16, 2017), etc.
Thus, the measure called in everyday life "penalty according to 395 of the Civil Code of the Russian Federation" is in fact a measure of property liability and at the same time payment for the use of other people's money. In calculating interest, it is imperative to take into account changes in Art. 395, which took place since 2015, since they influenced both the calculation formula, and the choice of the interest rate, and the very possibility of calculating interest. A sample of the calculation of the penalty under Art. 395 of the Civil Code of the Russian Federation can be downloaded on our website.
Debt amount: | (pennies are separated point) | |
VAT (%): | (0 - if excluding VAT) | |
Percent (%): | ||
Until 01.06.2015: refinancing rate From 01.06.2015: the average rate of bank interest on deposits of individuals From 01.08.2016: key rate |
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Period: | with… | on… |
Amount of debt 0, including VAT 0%
Delay period from 0 to 0: 0 (days)
Rate (%): 0%
Percentage total for the period = 0 = 0
Interest under article 395 of the Civil Code of the Russian Federation: calculation rules
The formula for calculating interest for the use of strangers in cash used in this calculator takes into account the provisions of Article 395 of the Civil Code of the Russian Federation, as well as the clarifications of the joint resolution of the Plenum The Supreme Court RF and Higher arbitration court RF RF No. 13/14 dated October 08, 1998.
The calculator's calculations 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 for the use of someone else's money?
When collecting interest under Article 395 of the Civil Code of the Russian Federation, it is necessary to take into account that:
- interest for the use of other people's funds is not a type of forfeit, however, the provisions of Article 333 of the Civil Code of the Russian Federation on the reduction of the forfeit are applicable to them;
- interest is calculated until the actual performance of the obligation;
- interest under Article 395 of the Civil Code of the Russian Federation is accrued not only within the framework of contractual obligations, but also within the framework of non-contractual ones, if they are of a monetary nature;
- interest for the use of other people's funds in relation to losses is offset in nature: you can collect the difference between the 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 funds due to their unlawful withholding, evasion from their return, other delay in their payment or unjustified receipt or savings at the expense of another person, interest is payable on the amount of these funds. The amount of interest is determined by the existing in the place of residence of the creditor, and if the creditor is entity, in the place of its location with the discount rate of the bank interest on the day of fulfillment of the monetary obligation or its corresponding part. When collecting a debt in a judicial proceeding, the court may satisfy the creditor's claim, proceeding from discount rate bank interest on the day the claim is filed or on the day the decision is made. These rules apply unless a different interest rate is established by law or contract.
New edition (2015):
1. For the use of other people's funds due to their unlawful withholding, 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 average rates of bank interest on deposits of individuals that exist at the place of residence of the lender or, if the lender is a legal entity, at the place of its location, published by the Bank of Russia and taking place in the corresponding periods. These rules apply unless a different interest rate is established by law or contract.
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 from the debtor compensation for losses in the part exceeding this amount.
3. Interest for the use of other people's funds shall be charged on the day of payment of the amount of these funds to the creditor, if by law, otherwise legal acts or the contract does not establish a shorter period for calculating interest.
Edition of 07/03/2016:
1. In cases of unlawful withholding of funds, evasion of their return, other delay in their payment, interest on the amount of the debt shall be paid. The interest rate is determined by the key rate of the Bank of Russia in effect in the respective periods. These rules apply unless a different interest rate is established by law or contract.
(Clause 1 as amended by Federal Law of 03.07.2016 N 315-FZ)
2. If the losses caused to the creditor by the unlawful use of his monetary funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he shall have the right to demand from the debtor compensation for losses in the part exceeding this amount.
3. Interest for the use of other people's funds shall be charged on the day of payment of the amount of these funds to the creditor, unless a shorter period is established for the accrual 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-performance or improper performance of a monetary obligation, the interest provided for in this article shall not be subject to collection, unless otherwise provided by law or contract.
(p. 4 introduced Federal law dated 08.03.2015 N 42-FZ)
5. Calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled by the parties entrepreneurial activity, the use of compound interest is not allowed, unless otherwise provided by law or contract.
(Clause 5 was introduced by the Federal Law of 08.03.2015 N 42-FZ)
6. If the amount of interest payable is clearly disproportionate to the consequences of the violation of the obligation, the court, upon the application of the debtor, has the right to reduce the interest provided for by the contract, but not less than to the amount determined based on the rate specified in paragraph 1 of this article.
At the rate of the Central Bank online with latest changes 2019 year
This Calculator will help you calculate the penalty for late payment of debt. This penalty interest is calculated from the date when the debtor was obliged to make payment until the date of the actual payment of the debt or the presentation of claims 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 for the use of other people's funds under Article 395 of the Civil Code of the Russian FederationWith the amount owed: For currency, the calculator independently determines the interest rate only from 01.06.2015. Indicate which interest rate to apply for the period before 06/01/2015: Calculation of interest on a monetary obligation under Art. 317.1 of the Civil Code of the Russian Federation With the amount owed: From to (days): p × × / = Introduced as the first day of delay. That is, the last day of the due date falls on a weekend. 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 day of the end of the term is the next working day following it. The closest working day is. And on the first day of delay, respectively, (Article 191 of the Civil Code of the Russian Federation). The calculation result of this calculator is for reference only and is not official information. Responsibility for non-fulfillment of a monetary obligation 1. In cases of unlawful withholding of funds, evasion of their return, other delay in their payment, interest on the amount of the debt shall be paid. The interest rate is determined by the key rate of the Bank of Russia in effect in the respective periods. These rules apply unless a different interest rate is established by law or agreement (as amended by Federal Law No. 315-FZ of July 3, 2016 - Collected Legislation Russian Federation, 2016, N 27, Art. 4248). 2. If the losses caused to the creditor by the unlawful use of his monetary funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he shall have the right to demand from the debtor compensation for losses in the part exceeding this amount. 3. Interest for the use of other people's funds shall be charged on the day of payment of the amount of these funds to the creditor, unless a shorter period is established for the accrual of interest by law, other legal acts or an agreement. 4. In the event that an agreement of the parties provides for a forfeit for non-performance or improper performance of a monetary obligation, interest provided for by this article shall not be subject to collection, unless otherwise provided by law or contract (paragraph 4 was introduced by Federal Law No. 42-FZ of March 8, 2015 - Collected Legislation of the Russian Federation, 2015, N 10, Art.1412). 5. Calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled when the parties carry out entrepreneurial activities, the use of compound interest is not allowed, unless otherwise provided by law or agreement (Clause 5 was introduced by Federal Law No. 42-FZ of March 8, 2015 - Collected Legislation of the Russian Federation, 2015, No. 10, Art. 1412). 6. If the amount of interest payable is clearly disproportionate to the consequences of the violation of the obligation, the court, upon the application of the debtor, has the right to reduce the interest provided for by the contract, but not less than to the amount determined based on the rate specified in paragraph 1 of this article (paragraph 6 was introduced by the Federal Law of March 8 2015 N 42-FZ - Collected Legislation of the Russian Federation, 2015, N 10, Art.1412). Interest on monetary obligation 1. 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 corresponding periods, unless a different amount of interest is established by law or agreement ... 2. The condition of the obligation providing for the accrual of interest on interest is null and void, except for the conditions of obligations arising from contracts bank deposit or from contracts related to the implementation of entrepreneurial activities by the parties. |
There is a convenient service for lawyers on the Internet - a calculator for calculating interest for the use of other people's funds under Article 395 of the Civil Code of the Russian Federation. Use it for free.
The online calculator for calculating the interest paid for the illegal withholding of funds or evasion of their payment, complies with the Civil Code,. The calculator's knowledge base includes all changes in the interest rate by region, which was set monthly by the Bank of Russia, as well as:
- the refinancing rate if the delay began before June 1, 2015;
- if the delay lasted after August 1, 2016.
The calculator for calculating interest for using other people's funds will tell you:
- what formula is used to calculate the penalty under Art. 395 of the Civil Code of the Russian Federation;
- how to calculate late fees in 2019 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 the payment was to be made.
Example. If the debtor had to make 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 by region, which was monthly set by the Bank of Russia, as well as the refinancing rate if the delay began before June 1, 2015, and the key rate if the delay was extended after August 1, 2016.
The general formula for calculating interest under article 395 of the Civil Code of the Russian Federation: the amount of the principal debt is multiplied by the number of calendar days of delay in payment and the current key rate indicator and divided by the number of days in a year.
For example: the customer's debt to the contractor was 100,000 rubles. The customer was overdue for 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 penalties under article 395 will amount to 143 rubles 84 kopecks.
Note that this method is used to determine the penalty interest for one-off payments. If the debt has arisen in respect of periodic payments, the interest on arrears is determined for each such payment separately up to the date of the debt repayment.
Also note that a different percentage may be specified in the contract, and you should use it when calculating.
How to calculate interest under article 395 of the Civil Code of the Russian Federation with periodic payments
According to Russian legislation the amount of the penalty for recurring payments (for the use of services, loans, equipment or real estate lease, etc.) is formed as an amount for all payment periods.
Example. A six-month contract was concluded for the lease of an excavator from July 25, 2018 to January 25, 2019 at a price of 30,000 rubles per month. Under the terms of the agreement, the lessee is obliged to pay the rent for a month in advance no later than the 25th day of the current month. However, he paid only for August and September, and avoided the rest of the payments. To use the calculator to calculate interest under Article 395 of the Civil Code of the Russian Federation, you need to add several amounts according to the following formula:
- Interest from 30,000 rubles. for the period of delay from 09/25/2018 to 02/04/2019 (approximate date statement of claim).
- Interest from 30,000 rubles. for the period from 25.10.2018 to 04.02.2019.
- Interest from 30,000 rubles. for the period from 25.11.2018 to 04.02.2019.
- Interest from 30,000 rubles. for the period from 25.12.2018 to 04.02.2019.
For each period of delay, the amount of the forfeit is calculated, the amount of interest will be the sum of the interest of the forfeit for the use or withholding of other people's funds accrued for each period.
How to determine the penalty interest if the rate has changed
On January 1, 2016, the refinancing rate was equated to the key one. From that moment, the penalty interest under Article 395 of the Civil Code of the Russian Federation began to be determined according to new rules: in the calculator, you need to indicate the current key rate or an indicator that corresponds to the delay period. It is only necessary to rely on the refinancing rate when determining the penalty for delays under old contracts. However, difficult calculation cases can arise.
For example, the contractor completed the work and delivered it on time, July 5, 2018. The payment date was tied to the time of acceptance of the results. On July 5, the client accepted the works, but did not pay. The principal amount of the 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's 154 days. When calculating interest under Article 395 of the Civil Code of the Russian Federation, you need to use a general formula and rely on the rate that was in effect in this period... The calculation might 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 = 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 = 1,664 rubles 38 kopecks.
- Add 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 was not indicated
Article 810 of the Civil Code of the Russian Federation obliges the borrower to return 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 on the borrower the obligation to fully repay the debt within thirty days from the date the lender submits the relevant requirements.
Example. The borrower borrowed 100,000 rubles from the lender against a receipt, which does not specify the date of repayment. Some time later - on August 15 - the creditor sent a claim to the debtor to repay the debt. In such a situation, the first day of delay will not be considered August 15, but August 15, plus 31 days, that is, September 16, since September 15 is the last day of loan repayment without interest accrued according to 395 of the 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 execution monetary obligations... According to Part 4 of Art. 395 of the Civil Code of the Russian Federation in the case when in the contract the parties themselves indicated the amount of fines for non-performance (improper performance) by one of the parties to the contract of their monetary obligations, then the calculation of interest is carried out on the basis of the contract.
However, on the basis of Part 6 of Art. 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 those are disproportionate to the consequences of non-payment of the debt.
In this regard, when filing a statement of claim, it is worth considering a possible decrease by a judge in claims and in case of an obvious discrepancy between the amount of interest and total debt you should yourself reduce the amount of interest, thereby saving on the amount of state duty.
The Law on Amendments to Part One Civil Code RF, significant changes were made to Article 395 of the Civil Code of the RF, which changed the procedure for calculating interest for the use of other people's 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 that date. For relationships that arose earlier, the order that existed before the changes applies. Since, purely technically, the procedure for calculating interest has become more complicated, it became necessary to quickly and efficiently calculate interest for the use of other people's funds. To quickly calculate interest for the use of someone else's 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 interest under Art. 395 of the Civil Code of the Russian Federation . Calculator 395:
At old edition article 395 of the Civil Code of the Russian Federation, it was much easier to calculate the interest for the use of other people's funds. At new edition articles, calculating interest without a special interest calculator will be difficult and time-consuming. These difficulties are associated with the fact that the interest for 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 prevailing in the respective periods. These rules apply unless a different interest rate is established by law or contract.
You can view the size of the average bank interest rates on deposits of individuals using the Consultant system or on the website The Central Bank Russia. On the other hand, the law stipulates that the amount of interest for the use of other people's funds will be determined by an agreement or by law. If an adequate term on interest is determined in the agreement, comparable to the degree of violation of the obligation, then the terms on interest stipulated by the agreement will be applied accordingly. At the same time, when we are talking about the conditions acceptable for the application of the interest rate provided for by the contract, in fact, we mean such contractual conditions under which there is no basis for the application of clause 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 violation of the obligation, the court, upon the application of the debtor, has the right to reduce the interest provided for by the contract, but not less than to the amount determined based on the rate specified in paragraph 1 of Art. 395 RF. Therefore, I recommend, to simplify life, for myself and my creditors on legal claims, to set 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 amount of interest exceeds the bank rate (it will be clearly disproportionate), then the court will have a reason to recalculate 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, given above). And if an adequate amount of interest was initially established by the agreement, then this could slightly simplify and, possibly, speed up the judicial process. In any case, the calculator of interest on st. 395 of the Civil Code of the Russian Federation. This calculator of interest 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, the magistrate's court is included in the system of courts of general jurisdiction.
In addition, Art. 317.1 of the Civil Code of the Russian Federation, which deals with 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 "Liability 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 as to how necessary Art. 317.1 and to what extent it will apply. I believe that the widespread use of Art. 317.1 will not have, but interest for the use of other people's funds as liability for failure to fulfill the obligations provided for in Art. 395 of the Civil Code of the Russian Federation, will be widely used. The new legislation also includes the establishment of a procedure according to which interest for the use of other people's funds is charged on the day the amount of these funds is paid to the creditor (clause 3 of Art. 395). Prohibition of the accrual of interest, in the event that a forfeit is stipulated (clause 4 of article 395). Prohibition on the accrual of interest on interest (compound interest) (clause 5 of article 395). These provisions are valid unless otherwise provided by law or contract. In any case, using the Interest Calculator will simplify the calculation of interest under Art. 395 of the Civil Code of the Russian Federation.