A supplier has paid a fine at the request of a customer. Is it possible to write it off after payment?

The parties entered into a contract for the supply of goods for the sum of 10 million roubles. Based on the results of a quality inspection of a batch of delivered goods, the customer presented the supplier with a claim for payment of a fine in the amount of RUB 500,000, which amounts to 5% of the contract price.

In order to avoid negative consequences (unilateral termination of the contract and the risk of inclusion in the RNP), the supplier first paid the fine in full and then filed a lawsuit with the court to recover unjust enrichment from the customer.

The supplier disagreed with the amount of the penalty, which, in its opinion, should have been calculated as a percentage of the value of the delivery stage (bid) rather than the contract price as a whole. He claimed the difference between the amount paid and the amount of the penalty for breach of a particular stage of performance.

When considering the dispute, the courts raised the issue of the possibility of writing off such a penalty.

What did they decide?

The courts of three instances granted the claim and noted:

● the amount of the accrued penalty, even when calculated on the entire value of the contract, does not exceed 5% of such value. Therefore, it was subject to write-off on the basis of Resolution of the Government of the Russian Federation No. 783 dated 04.07.2018;
● the write-off of penalties and fines accrued to the supplier is an imperative obligation of the customer and does not depend on the discretion of the latter;
● the fact that the supplier did not apply to the customer with a request to write off the penalty is of no legal significance: it does not exempt the customer from applying the Rules approved by Resolution No. 783. In addition, the customer itself did not send a reconciliation act and did not act to agree with the counterparty on the amount of the accrued penalty;
● the presence or absence of the fact of payment of a penalty or fine does not affect the write-off: the Rules do not prohibit the write-off of penalties paid by the other party in order to avoid negative consequences.

The customer appealed the court acts to the Supreme Court of the Russian Federation. In its opinion, the courts exceeded the limits of the claims when they concluded that the penalty should be written off in full. After all, the supplier had charged only part of the fine paid.

Having reviewed the case materials, the Supreme Court of the Russian Federation found no violations.

It pointed out that the court has the right to independently determine whether there are grounds for the application of state support measures. In this case, the court, having seen the conditions for the application of the Rules established by Resolution No. 783, recognized the necessity and validity of their application. It did not allow exceeding the limits of the stated requirements.

Document: Decision of the Supreme Court of the Russian Federation of 25.04.2024 in case No. A41-15794/2023