According to FSBU 5/2019, how to reflect goods purchased on deferred payment terms?

Essential terms of the transaction for the purchase and sale of goods with postpayment

The contract is not concluded if the essential terms of the transaction are not agreed upon (clause 1 of Article 432 of the Civil Code of the Russian Federation). For the delivery of goods, such essential provisions are:

  1. Name of product. It should be clear from the contractual obligations of the parties what the supplier supplies to the buyer.
  2. Quantity of commercial products.

The provisions that stipulate the price, delivery and payment terms are not essential, but are very important in the performance of obligations by both parties.

How to negotiate with bailiffs: what is possible and what is not

It all depends on what you mean by “agree.” The bailiff does not receive any personal benefit from the collection and cannot be interested in the outcome of the case. If you try to “solve the issue” with money or by promising benefits in favor of the bailiff, you may be prosecuted for giving a bribe.

Pressing for pity is also useless. Each FSSP specialist simultaneously has dozens and hundreds of collection cases in progress. For each of them, it is necessary to carry out painstaking work to find the defaulters and their property, and force the debtors to pay the collector. Instead of useless persuasion or deliberately illegal actions, it is better to use the provisions of Law No. 229-FZ. Read more about this below.

Deferment of execution

Deferment is a period of time during which the debtor may not pay the debtor.

The bailiff can only delay enforcement actions for up to 10 days if such a request is submitted by the debtor. But the FSSP specialist is not obliged to give such a deferment.

For example, during an urgent business trip, the debtor cannot be personally present during the inspection and seizure of property, therefore he has the right to request a postponement of this procedure.

Officially deferring debt payments can only be done through the court that made the decision. When submitting an application, you must indicate valid reasons for postponing the deadline. For example, you can ask for a deferment while you are in hospital if the debtor is undergoing a complex operation. The judge will determine the exact period of deferment based on the evidence presented. In practice, courts rarely grant more than 4-6 months of deferment.

How to get an installment plan for a writ of execution from bailiffs

There is no way to get an installment plan for a writ of execution from the bailiff service.

FSSP specialists simply do not have the right to provide installment plans. All they can do is determine the percentage of withholding when sending documents to the debtor's place of work or to the bank. Therefore, it makes no sense to submit an application and try to pay off the debt through the bailiff.

Installment payment through the court

In any enforcement proceeding there is a very good chance to settle debts through the court. The fact is that the creditor can also receive certain benefits from the installment plan. When considering the application, the judge will check whether the debtor has a real chance of paying certain amounts each month. If there is such an opportunity, the claimant is guaranteed to receive his money, even if not in a lump sum.

We would like to repeat once again - you need to ask the court (and seek to make such a decision) to order payments to pay off the debt in an amount that will be feasible for the debtor. So that with the funds remaining to him he could support his life - and his family.

You can ask the court to install the debt at any stage of the proceedings. The algorithm of actions is as follows:

  • you need to prepare evidence confirming the grounds for the installment plan;
  • it is necessary to fill out an application, make correct references to evidence and legal norms;
  • you need to submit documents to the court that made the decision to collect the debt.

It is advisable to personally take part in the consideration of the application, justify your request and convince that the evidence in your case is extremely serious. The claimant has the right to present his objections, which may influence the court's decision.

If the court agrees with your arguments, it will issue a ruling to grant an installment plan. The document will indicate the period of time during which you can avoid paying your debts. Please note that you can apply for installments several times. At the same time, for each new application you need to re-prove the validity of the reasons why you cannot pay the debtor at once. Automatic extension of the installment plan is not allowed.

What to indicate in an application for installment plan

It depends on the application and the evidence provided whether you will be able to pay off your debts in installments.

The application must indicate:

  • your data, information about the claimant;
  • details of the FSSP proceedings (number, date of initiation);
  • basic information about the court decision and the writ of execution for debt collection;
  • a reference to the valid circumstances for which you are asking to install the debt;
  • the period of time you request for installments;
  • asking the court to release you from payments;
  • signature, date.

An application for an installment plan can also be submitted by the bailiff leading the case. In practice, this is extremely rare, since only the debtor is directly interested in changing the terms of collection.

The application must indicate and justify the exact reasons why you are asking for an installment plan. Such circumstances may be:

All of the above circumstances must be supported by documents. For example, this could be the conclusion of a medical and social examination (MSE) or extracts from the register of disability, a certificate from the employment center (CPE) about registration for unemployment, a child’s birth certificate, and other documents.

Settlement agreement with the claimant

This option is allowed by Law No. 229-FZ, but is extremely rare. The claimant is unlikely to agree to formalize a settlement agreement and withdraw documents from the FSSP, even if the debtor guarantees voluntary payments. If you manage to reach an agreement, the settlement agreement must be submitted to the court for approval. And you must not violate its terms.

The bailiff does not have the right to make decisions on such issues himself. If the agreement is approved, the FSSP specialist will complete the case, return the documents to the claimant, and stop enforcement actions.

Executive holidays

This is a special installment option that can be provided by the bailiff himself. Executive holidays were introduced in 2022 as a support measure due to the coronavirus pandemic. Only debtor pensioners can receive an installment plan if their income does not exceed two subsistence minimums.

General conditions for granting holidays:

  • Installment plans are provided only for credit debts in the amount of up to 1 million rubles;
  • the maximum duration of the vacation is 24 months;
  • the debtor-pensioner is obliged to submit an application and payment schedule to the FSSP.

The entire amount of debt in the schedule is divided by the number of months of installments. In most cases, this is less profitable than monthly deductions of 50% from the pension.

For example, with a debt amount of 1 million rubles. and a vacation period of 24 months, the debtor will have to pay more than 41 thousand rubles monthly. Agree that the amount of deductions from your pension will always be much less. Therefore, only a few debtors took advantage of executive holidays.

Installment payment and postpayment for commercial products: differences

The procedure and terms of payment are agreed upon by the parties to the transaction when establishing contractual obligations. The parties have the right to establish that the delivered goods are paid for on a post-payment basis. The terms of the deferred payment agreement must clearly define how long after the delivery of the goods to the buyer payment for the delivery is made.

Unlike a one-time postpayment, installment plans provide for the repayment of debt through several periodic transfers of funds (Article 488 of the Civil Code of the Russian Federation). Installment terms: the cost of the goods, the procedure, terms and amounts of transfer amounts are essential provisions of the contract for delivery in installments.

How to write a letter about deferred payment to a supplier

In what cases is it necessary to issue a letter of deferred payment? This must be done when any economic entity does not repay its obligations. If he cannot pay for the delivery of products, he should notify the counterparty about this by writing a letter about deferred payment to the supplier. This document informs the business partner that all obligations that exist to him will be repaid by the buyer.

At the legislative level, the standard form of the letter is not fixed. Only some recommendations are given on what the structure of the document consists of and what points should be in order for it to have legal force. Each company develops its own letter form on its own. It is preferable to use the organization's letterhead to complete the document.

A letter about deferred payment is sent to the supplier by the debtor himself. Such a document is also required if you need to provide a response to a claim received from the supplier. What does the text indicate? The letter informs about the debtor’s readiness to repay obligations, taking into account the interest and terms specified by the partner. When this is not possible, you should place a request in the letter to postpone the payment deadline.

Letter of guarantee on deferred payment to the supplier (sample):

Recommended items that a letter about deferred payment to a supplier may contain:

  • The name of the company that sent the letter (IP).
  • Name of the organization (full name of the entrepreneur) - recipient of the letter.
  • Sender's details (TIN, legal address, checkpoint, etc.).
  • Details of the contract for the supply of goods.
  • Description of the guarantee for payment of existing debt, which is provided by the debtor.
  • Indication of the amount of debt to be paid (the amount is indicated in words). If the partner’s demand is to pay a penalty, the debtor must indicate his agreement or disagreement in the letter.
  • When will the obligations be repaid?

The letter is signed by the head and chief accountant of the organization. If the company has a seal, it must also be affixed.

What is the structure of a letter about deferred payment to a supplier:

  • In the upper right corner of the document there is information regarding the sender and recipient. The date of creation of the letter and its outgoing number are also indicated here.
  • Introduction. This part describes the reason for the application (for example, you can write the following phrase: “Due to the impossibility of fulfilling the obligation on time due to ...”, etc.). The purpose of the appeal is also stated here (“To resolve the issue”, “To avoid conflict”, etc.).
  • The main part of the letter in which the sender asks the supplier to defer payment. It is advisable to use the phrases: “I am making a request” or “I ask you.” The form of address to a business partner must be respectful. When a document contains several requests to a business partner, they are indicated in separate paragraphs or paragraphs. If the sender wishes to receive a response within a certain period, he should also inform him about this in a letter.
  • At the end of the document - the signature of the head of the company (with a transcript).

Tips that are recommended to be used if you are going to write a letter to the supplier about increasing the deferred payment:

  • The writing style should be businesslike.
  • State your requirement or request clearly and clearly. Slang in this case is unacceptable.
  • The letter should consist of simple sentences; complex adverbial or participial phrases are undesirable. Lengthy discussions or vague phrases are not recommended.
  • Realistically assess your capabilities by indicating the expected repayment terms of your obligations. It is recommended to indicate the time with some reserve.
  • Let your supplier know that you plan to continue doing business with them. This will stop him from trying to go to the courts to recover the debt.

Features of compilation

When drawing up delivery conditions, the deferred payment clause of the agreement is included immediately if the parties agree on postpayment at the time of concluding the agreement.

This is the easiest situation to document. But the question arises: how to include a deferred payment in the contract after its conclusion? In this case, an additional agreement will be required. It is drawn up in writing and signed by both parties. If the transaction was initially certified by a notary, then the additional agreement should also be notarized.

Postpayment and commercial loan

When establishing postpayment in the contract, the supplier has the right to provide interest for deferred payment under the supply agreement. This type of contractual relationship is called a commercial loan (Article 489 of the Civil Code of the Russian Federation). Interest is accrued from the date of transfer of marketable products in the amount agreed upon by the parties to the transaction.

The terms of a commercial loan are specified in the contract for the supply of commercial products. If there is no provision for the accrual of interest, then the deferred payment of commodity products is not automatically recognized as a commercial loan (see, for example, Resolution of the Arbitration Court of the Central Federal District No. F10-322/2018 dated 04/09/2018).

Example: how to specify a deferment in an agreement on the terms of a commercial loan

Contracts with deferred payment

Often, buyers offer gullible sellers to ship the goods before payment. In this case, the supplier runs the risk of never receiving payment. Returning the goods to the seller will be difficult, and sometimes even impossible. Let's give an example from life. One foreign company agreed to supply goods to a Russian company without full advance payment. When the cargo was undergoing customs clearance, the domestic buyer “suddenly” went bankrupt. According to the terms of the supply contract, the recipient of the valuables was obliged to transfer customs payments to the treasury. The buyer did not do this because there simply were not enough funds in his accounts. As a result, customs officers confiscated the goods and sold them on the Russian market.

How can sellers protect themselves from such unscrupulous buyers? To do this, you need to pay close attention to the legal aspects of advance supplies.

Commercial loan

The definition of the concept of “commercial loan” contains paragraph 1 of Article 823 of the Civil Code. Its essence is as follows. Under an agreement for the supply of goods, the buyer can receive a loan. The seller can issue a loan in the form of an advance, defer or installment payment for its products or goods.

Thus, the legislator proposes to consider deferred payment as one of the types of commercial loans. At the same time, the relations of the parties under an agreement with the condition of “advance” delivery are regulated by Chapter 42 “Loan and Credit” of the Civil Code.

Interest for “deferred payment”

It should be noted that the legislator has established a “presumption of payment” for a commercial loan (Article 809 of the Civil Code of the Russian Federation). Therefore, the lender has the right to receive interest from his debtor on the loan amount. Their size is determined by the terms of the contract between the seller and the buyer. If the agreement does not indicate the amount of interest, then it is considered equal to the bank refinancing rate on the day the debt is paid by the borrower (at the location of the payer).

Thus, the lender has the right to demand that the borrower pay interest on the transaction, even if this is not provided for in the supply agreement (clause 7 of the appendix to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 17, 2004 No. 85).

If the borrower does not repay the loan amount on time, he will have to pay interest to the lender (clause 1 of Article 811 of the Civil Code of the Russian Federation). If their size is not specified in the contract, you need to refer to paragraph 1 of Article 395 of the Civil Code. It says that interest should be determined at the discount rate of bank interest, which is in effect in the location of the creditor on the day the debt is repaid.

Interest must be accrued from the first day of late payment until the loan is repaid. This should be done even if the borrower has paid the interest provided for in Article 809 of the Civil Code.

Sanction or contractual obligation?

Sometimes entrepreneurs mistakenly believe that if the debtor fails to pay the loan amount on time, interest can be charged under Articles 809 and 811. However, interest under Article 809 is, in essence, a contractual obligation. Therefore, they can be accrued until the date when the debt must be repaid.

Interest under Article 811 of the Civil Code is a sanction. This conclusion is supported, for example, by the decisions of the Presidium of the Supreme Arbitration Court of March 24, 1998 No. 6395/97 and No. 5801/97/847. Moreover, such interest can be accrued only on the principal amount of the debt - without taking into account the cost of deferred payment (unless the agreement provides for another condition).

Legal nuances

In judicial practice, the size of the refinancing rate (Article 809 of the Civil Code of the Russian Federation) and the accounting value of bank interest are the same. Currently, it is equal to 12 percent per annum (telegram of the Central Bank of the Russian Federation dated December 23, 2005 No. 1643-U). A natural question arises: what exactly is the penalty for the defaulter? After all, using the opportunity to defer payment before and after the expiration of the debt repayment period, the borrower is obliged to return the same amount of interest to the lender. However, in this case it is worth noting that the Civil Code contains a clause: “unless otherwise provided by law or contract.” Therefore, the parties to the transaction have the right to establish their own conditions in the agreement, according to which interest will be accrued.

Thus, in order to avoid misunderstandings, it is advisable to include in the text of the contract provisions on the “payment” of deferred payment, as well as determine the amount of the penalty for violation of payment deadlines.

However, if the amount of accrued interest is clearly greater than the damage from the unfulfilled obligation, the court has the right to reduce it. Moreover, he can do this at his own discretion.

To avoid the situation described, the lender must prove to the court that he is right. That is, it is necessary to provide documents that confirm the appropriateness of the established penalty. However, it should be remembered that the court accepts only that evidence that is relevant to the case under consideration (clause 1 of Article 67 of the Arbitration Procedure Code of the Russian Federation).

Simultaneously with the claim for the recovery of a penalty, it makes sense for the lender to present a demand to the debtor to compensate for his losses. In this case, the court will have no reason not to accept evidence that the penalty established by the lender corresponds to its costs. By the way, in the future the creditor may waive its claims against the debtor*. However, the lender will still be able to draw the court’s attention to evidence that the amount of the penalty corresponds to its losses. As a result, the court is unlikely to reduce the penalty rate set by the seller or will reduce it slightly. Before making claims for damages against the debtor, the creditor needs to know for sure whether it is worth doing so. After all, when filing a claim, he will have to pay a state fee, the amount of which depends on the amount of the claim. Subsequently, when the demands are withdrawn, the state duty will not be returned to the creditor.

Special rules

Often, a deferred payment agreement provides for the opportunity to repay the debt in installments. Moreover, if the borrower does not return the next part of the payment on time, the lender has the right to demand that the buyer repay the entire amount of the debt ahead of schedule, including interest.

All recommendations considered can be used regardless of the type of main obligation under a contract with deferred payment. It can be not only the sale of goods, performance of work or provision of services. A commercial loan is also considered a deferment or installment plan for the payment of agency or commission fees, payments for transportation, forwarding services, rent, premiums under an insurance contract, etc.

However, for some types of agreements the legislator has provided special rules. Thus, Articles 488 and 489 of the Civil Code regulate payment for goods sold on credit or in installments, respectively. Contracts for the purchase and sale of retail products with deferred payment also have their own characteristics (clause 3 of Article 500 of the Civil Code of the Russian Federation). Articles 951 and 954 of the Civil Code regulate the payment in installments of premiums under insurance contracts.

Sale and purchase agreements are the most common in civil transactions. Therefore, it is not surprising that the features of deferred payment under such agreements are carefully regulated by law. For example, if a buyer who received goods on credit does not pay for it on time, the lender has the right to demand that he return the unpaid property (Clause 3 of Article 488 of the Civil Code of the Russian Federation).

When selling goods in installments, the seller also has the right to demand that the buyer return the goods (Clause 2 of Article 489 of the Civil Code of the Russian Federation). However, the lender acquires such a right only if the debtor fails to make the next payment on time. The exception is the case when the buyer has paid more than half the cost of the goods.

Seller's guarantees

Goods that are sold on credit are considered pledged from the moment of transfer to the buyer until payment (clause 5 of Article 488 of the Civil Code of the Russian Federation). This rule guarantees that the debtor will fulfill his obligations under the contract. However, this measure works reliably only in relation to real estate, as well as property the rights to which are subject to state registration (Article 131 of the Civil Code of the Russian Federation). Therefore, if the subject of a purchase and sale agreement is, for example, a car, it is advisable for the seller to provide additional guarantees in the agreement. For example, he may reserve the ability to retain title documents. Without these papers, the buyer will not be able to resell the goods until he completes all payments with the seller. The agreement may also provide for a pledge of any property, a surety, a bank guarantee, etc.

The condition of deferred or installment payment can be used in any type of contract. Legislation gives merchants the opportunity to independently regulate relationships in agreements that they enter into with each other.

*In practice, it is very difficult to prove in court the connection between the debtor’s violation of contractual obligations and the lender’s losses. In addition, the latter are compensated in the part not covered by the penalty (clause 1 of Article 394 of the Civil Code of the Russian Federation). Therefore, it is better for the lender to withdraw its claims against the borrower on its own, rather than wait for the court’s refusal.

The Ministry of Finance reassured businessmen

At first, the concept of “commercial loan” was very alarming for entrepreneurs. They traditionally associated it with banking. However, the Ministry of Finance has issued several clarifying documents. And all the “i’s” were dotted by order No. 94n dated October 31, 2000 “On approval of the chart of accounts for accounting of financial and economic activities of organizations and instructions for its application.”

Eduard Babanov, lawyer at the Moscow Bar Association "Barshchevsky and Partners"

Late fees

The parties to the transaction have the right to agree on penalties for violation of fulfillment of contractual obligations in any amount. But even if the deferred payment agreement does not include provisions for penalties, the supplier has the right to demand them for late payment in accordance with Art. 395 of the Civil Code of the Russian Federation.

If payment terms for delivered products are violated, the supplier has the right:

  • collect for late transfer of funds a penalty in the amount established by the contract or interest in the amount of the key rate of the Bank of Russia for each day of delay in the transfer of funds, if penalties are not specified in the contractual obligations;
  • demand compensation for losses if they exceed the collected penalty;
  • demand the return of previously delivered and unpaid goods.
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