The court clarified whether it is possible to withhold the entire amount of collateral for the state contract in case of delay in its execution
The AC of the Volga region counted that the customer does not have the right to withhold the entire amount of security for the delay in fulfilling the obligations. This conclusion was made by the court despite the fact that the contract provided for the transfer to the customer of securing the contract in full upon failure to perform or improper performance by the customer's counterparty of its obligations.
The court referred to the provisions of the Civil Code of the Russian Federation on security payment and indicated that enforcement of the contract is intended to minimize the risk of its failure to perform or improper performance and simplify the procedure for meeting the customer's requirements for the counterparty.
The amount of the collateral held is directly related to the size of the customer's requirements for the counterparty. A similar position is reflected in the Review of Practice of Application of Legislation on the Contract System of Supreme Court of Russian Federation.
Consequently, in the situation under consideration, the customer was only entitled to withhold the amount of the accrued and unpaid penalties from the security amount.
Separately, the court noted that, by charging a penalty for delay in the performance of obligations and retaining the security of the contract in full, the customer actually applies two measures of responsibility for one violation. This is inadmissible in accordance with civil law.
Note that in judicial practice, there is another approach.
Document:
Decree of the AU of the Volga region from 26.01.2018 on the case N A55-4570 / 2017