The Supreme Court confirmed the right of the guarantor to a penalty for delay on the loan
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The Supreme Court of the Russian Federation (SC) clarified the issue of paying a penalty on preferential “coronavirus loans”. In May 2020, MS-Logistics LLC took a loan from Sberbank for 4.4 million rubles. at an interest-free rate. The parties agreed that the borrower shall be charged a penalty in the amount of 0.1% of the amount of the overdue payment for each day of delay. The state corporation VEB.RF vouched for the LLC (for 75% of the debt).
In April 2021, VEB.RF Corporation paid Sberbank 3.3 million rubles. for the company, after which she demanded that the LLC reimburse this amount, as well as pay 0.4 million rubles. penalties for late payments.
Arbitration courts recovered 3.3 million rubles. with MS-Logistics, refusing to recover the penalty. The courts pointed out that the plaintiff “did not indicate the legal nature of the origin of the penalty claimed for collection” (for more details, see “Kommersant” dated July 5).
VEB.RF complained to the Supreme Court, insisting that it was entitled to a penalty for four months from the day following the day of payment to Sberbank. The case was referred to the Economic Collegium of the Armed Forces, which canceled all decisions regarding the refusal to recover the penalty (.pdf).
The Supreme Court recalled that, according to Art. 365 of the Civil Code of the Russian Federation, the rights of the creditor under this obligation, “including the right to interest,” pass to the guarantor who has fulfilled the obligation.
Thus, according to the decision, VEB.RF fulfilled the obligations of the borrower to the creditor, and the corresponding rights of claim were transferred to it. And since the improper fulfillment of obligations under the loan “was secured by a penalty, the guarantor had the right to demand its payment,” the court pointed out. With a different approach, a company that has violated credit obligations “will be released from contractual liability, which does not correspond to the legal nature of credit relations and contradicts the terms of the surety agreement concluded by the parties.”
As a result, the board sent the dispute for a new consideration, indicating to check the calculation of the penalty made by the corporation.
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