The Supreme Court of the Russian Federation: in the contract, you can set penalties in a larger amount than provided for by Law No. 44-FZ

30 July 2021, Friday

The parties have signed a contract. It provided for penalties in the amount of 1% of the contract amount for each day of delay in the fulfillment of obligations by the supplier. The latter appealed to the court to recognize such a condition as null and void. The first instance agreed with him: the amount of penalties in the contract is higher than their value under Law No. 44-FZ. For each day of delay, the penalties should be 1/300 of the key rate of the Central Bank of the Russian Federation effective on the date of payment of the penalties from the amount not paid on time.
The appeal and cassation decided that the condition on the amount of penalties greater than specified in Law No. 44-FZ does not contradict the law and is not a basis for declaring the disputed condition invalid.
In the review, the judicial board of the Supreme Court of the Russian Federation, with reference to the norm of the Civil Code of the Russian Federation on the possibility of increasing the amount of the penalty, decided that the penalties in the contract can be determined higher than under Law No. 44-FZ. Since this provision of the Civil Code of the Russian Federation has not changed yet, the conclusions from the review are still applicable today.
In addition, according to the legislation on the contract system, it is not prohibited to set the amount of liability more than provided for. However, it can be reduced by the court if there are grounds under the Civil Code of the Russian Federation.
The Supreme Court of the Russian Federation did not review the case.
Note that in practice there is also an opposite opinion.
Document:      
Definition of the Armed Forces of the Russian Federation from 13.07.2021 N 308-ES21-10726

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