Request for payment of a contractual penalty

prokurent.com 1 month ago

Request for payment of a contractual penalty: what to compose and what papers to attach

A call for payment of a contractual punishment is frequently the first step erstwhile a counterparty fails to execute a contract or executes it improperly

Contractual penalty is the amount reserved in the accident contract default or misexecution non-monetary liabilities. This means that if the supplier of the service He'll be late for delivery. either fails to meet the terms of the contractshould pay the counterparty a fixed amount. This may concern, for example, the quality of the work done.

It is besides worth remembering the ultimate Court's approach. The Court of First Instance considered that if the contract provides for a contractual penalty, the work to pay it exists even if the creditor has not actually suffered damage. In practice, this means that there is no request for concrete losses. The punishment is due on the basis of the contract itself and is simply a pre-established settlement.

Is the call necessary

Do you always gotta send a bill to the court before you go to court?
The bill doesn't order it. In practice, however, specified a call is simply a good custom. They're usually sent by registered letter confirming receiptto have proof of delivery.

He besides stressed the importance of the call Supreme Court in Resolution of 5 November 2014. (III CZP 76/14). He pointed out that if the contract did not specify the time limit for payment of the contractual penalty, the deduction of the claim would require the debtor to pay in advance.

Although this position concerns deductions, it is worth calling clearly on the counterparty to regulate the fine in any case. specified a letter is besides of procedural importance. The court may examine whether the creditor has made a claim in due time and in the prescribed form.

Which must contain a call

How do I compose an effective call for payment?
The call must be made clear, what amount you want and of which the work to pay. It is best to supply the legal basis immediately, i.e. Article 483(1), as well as a circumstantial evidence of the contract which provides for a contractual punishment for the infringement in question. Could be, for example, delay either default.

The next step is simply a precise calculation of receivables. If the contract provides for a percent or a fixed amount for each day, it shall be multiplied by the number of days of delay. It is worth remembering that the contractual punishment should be possible to calculate already at the phase of concluding the contract and should not require additional evidence. Therefore, it is good to immediately indicate in the call the calculation method, for example x PLN per day times y days of delay, which gives the full amount of penalties.

Documents and time of payment

The letter should be accompanied by all papers that confirm the basis of the claim. usually it will be a copy of the contract and possible annexes. The reception, order confirmation and correspondence between the parties may besides be useful. If the punishment is due to failure to execute certain activities, it is worth adding evidence that they have not been carried out. This may be, for example, a protocol on the work remaining unfinished.

Finally, a circumstantial payment deadline must be set, for example 7 days after service. It is besides a good practice to make it clear that the case will be brought to justice after this deadline has been unsuccessful.

When is it worth sending a call to pay a contractual penalty?

When a counterparty fails to execute a contract or executes it incorrectly, for example delaying transportation or failing to comply with agreed terms. It is worth reacting rapidly to order the situation and increase the chance of voluntary payment without a legal dispute.

The first step could be free consultationIn which we examine the agreement, the way penalties are calculated and the real hazard of dispute.