How to calculate interest under Article 395 of the Civil Code of the Russian Federation (new rules). Penalty for the use of other people's funds Calculation of interest under 395 Civil Code of the Russian Federation formula
According to the provisions of Art. 395 of the Civil Code of the Russian Federation in cases of unlawful withholding of funds, evasion of their return, or other delay in their payment, interest on the amount of the debt is subject to payment. There is no clear indication of what is meant by debt (principal or total debt, taking into account penalties and state duties) and what is the deadline for collecting interest for the use of someone else’s in cash(the moment the court decision comes into force or the writ of execution is entered into proceedings).
The organization has incurred a debt under the contract. A court decision was made to recover from the defendant the amount of the principal debt, penalties and expenses for payment of state duties. The defendant paid nothing.
Is it legal to charge interest for the use of someone else’s money on the basis of Art. 395 of the Civil Code of the Russian Federation for the entire amount, including penalties and state duty? From when should interest accrue?
1. According to the Civil Code of the Russian Federation, in cases of unlawful withholding of funds, evasion of their return, or other delay in their payment, interest on the amount of the debt must be paid. The amount of interest is determined by the key rate of the Bank of Russia in force during the relevant periods. These rules apply unless a different interest rate is established by law or agreement.
Indeed, the provisions of the Civil Code of the Russian Federation do not define the concept of debt. However, according to paragraph 4 of this article, in the case where the agreement of the parties provides for a penalty for non-fulfillment or improper fulfillment of a monetary obligation, the interest provided for in this article is not subject to collection, unless otherwise provided by law or agreement. This norm was introduced into civil legislation dated 03/08/2015 N 42-FZ, which entered into force on June 1, 2015.
It follows from the Civil Code of the Russian Federation that it applies only to contractual penalties. However, judicial practice proceeds from the fact that this rule also applies to legal penalties (and the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 N 7 “On the application by courts of certain provisions Russian Federation on liability for violation of obligations"; hereinafter - Resolution No. 7). From these clarifications it is clear that there is some uncertainty in the position of the RF Armed Forces regarding the scope of application of the Civil Code of the Russian Federation. Based on Resolution No. 7, it can be assumed that interest under the Civil Code of the Russian Federation is not subject to recovery in in cases where the contract or law provides for a so-called offset penalty (paragraph one of the Civil Code of the Russian Federation). In paragraph 50 of the said resolution, no exceptions are made in this regard. In our opinion, this is more consistent with the literal meaning of the Civil Code of the Russian Federation.
Before the adoption of No. 7, the issue of the validity of the Civil Code of the Russian Federation in time was controversial in practice. A variety of points of view were expressed (see, for example, the resolutions of the Ninth AAS dated 09.09.2015 N 09AP-29589/15, the Sixth AAS dated 08.18.2015 N 06AP-3748/15, the Seventh AAS dated 07.30.2015 N 07AP-5885/15) . From Resolution No. 7 it follows that this norm does not apply to contracts concluded before June 1, 2015. When deciding on the relationship between interest under the Civil Code of the Russian Federation and penalties in relation to such contracts, one should be guided by the previously effective version of the Russian Federation, taking into account the established practice of its application (definition of the IC on economic disputes of the Armed Forces of the Russian Federation dated November 10, 2016 N 309-ES16-9411).
In this regard, we note that until June 1, 2015, the legislation did not provide a direct answer to this question. Judicial practice was based on the fact that, as a general rule, the creditor has the right to apply interest or a penalty to the debtor at his own discretion. In cases where the penalty was of a punitive nature, the collection of both interest and penalties was allowed (clause 6 and clause 15 of the resolution of the Plenum of the RF Armed Forces and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 N 13/14, resolution of the Plenum of the RF Armed Forces dated June 28. 2012 N 17).
2. Let us note that significant changes have occurred in recent years in legislation and law enforcement practice regarding the application of the provisions of the Civil Code of the Russian Federation in the event of untimely execution of a judicial act. Previously, these relations were subject to the resolution of the Plenum of the Supreme Arbitration Court RF dated 04.04.2014 N 22. The Supreme Arbitration Court of the Russian Federation believed that since the Civil Code of the Russian Federation is subject to application to any monetary claim arising from civil relations, as well as to legal expenses, the law allows for the accrual of interest on a sum of money awarded by the court as a consequence of non-execution of a judicial act. Based on this and in order to ensure timely execution of the judicial act by the debtor, the court, satisfying the application for the recovery of funds, awards the plaintiff interest for the use of other people's funds for the entire amount collected from the moment the judicial act enters into legal force until its actual execution (hereinafter referred to as interest in case of non-execution of a judicial act).
However, at present, the specified paragraph 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 04.04.2014 N 22 is not subject to application in accordance with paragraph seven of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 06.23.2015 N 25.
Federal Law dated 03/08/2015 N 42-FZ of the Russian Federation is supplemented by Article 308.3, which provides for the possibility of awarding a sum of money in case of non-execution of a judicial act. This norm contains a reference to the Civil Code of the Russian Federation on penalties. This suggests that the Civil Code of the Russian Federation should not be directly applied in relevant respects.
From the provisions of Resolution No. 7 it follows that the interest specified in the Civil Code of the Russian Federation is accrued from the date of delay in the fulfillment of monetary obligations arising from contracts and is accrued on the amount the payment of which is overdue in accordance with the terms of the contract. The provisions of the Civil Code of the Russian Federation do not apply to relations between the parties that are not related to the use of money as a means of payment (a means of repaying a monetary debt), and are also not applied to the amount of economic (financial) sanctions (Resolution No. 7).
As we can see, the Civil Code of the Russian Federation provides for liability for violation of a monetary obligation. Therefore, interest accrual is allowed only on the amount of the specified legal obligation based on material legal relations. Legal costs collected by a court decision cannot be included in the monetary obligation, since the legal nature of such costs is not based on a material obligation. Therefore, after the recognition of clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 04.04.2014 N 22 as invalid, the courts recognize as unjustified the accrual of interest provided for. Taking into account the current practice, in our opinion, the interest provided for by the Civil Code of the Russian Federation is accrued from the date of delay in the fulfillment of monetary obligations arising from the agreement , for an amount the payment of which is overdue in accordance with the terms of the contract; accordingly, the accrual of interest on the amount of state duty is unlawful.
Prepared answer:
Expert of the Legal Consulting Service GARANT
Verkhova Nadezhda
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Barseghyan Artem
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
For the convenience of persons interested in calculating interest under Art. 395 of the Civil Code of the Russian Federation, we have developed a calculator for calculating interest for the use of other people's funds, in which the interest rates change automatically. Now, in order to correctly calculate the amount of interest, you will only need to enter the amount of debt, the period of delay and the location of the creditor. By using the calculator on the website of the Lex Group of Law Companies, you can be sure that interest is calculated correctly according to the refinancing rate of the Central Bank of the Russian Federation. Rates and calculator formulas for online calculations are updated promptly.
When collecting interest under Article 395 of the Civil Code of the Russian Federation, it is necessary to keep in mind the following.
If your counterparty does not pay the debt, you have the opportunity to collect from him, in addition to the principal debt, a penalty for failure to meet payment deadlines. However, the possibility of collection and the amount of the penalty are not always determined by the contract. Moreover, the parties may generally be in non-contractual relations if, for example, we are talking about unjust enrichment. Can any other penalties be applied to the debtor?
The answer to this question is contained in Article 395 of the Civil Code of the Russian Federation, according to which the creditor has the right to recover from the debtor, in addition to the principal debt, interest for the use of other people's funds.
It is important for the creditor to take into account that interest for the use of someone else’s funds can be collected on the day the debt is actually paid. In case of interest collection judicial procedure, the creditor has the right to make a claim for the recovery of interest in a fixed amount monetary amount calculated on the day the decision was made, as well as interest for the period from the day following the day the decision was made to the day the debt was actually paid. Moreover, the collection of contractual penalties and interest for the use of other people's funds for the same period is unacceptable.
The amount of interest is determined by those existing in the place of residence of the creditor or, if the creditor is entity, at its location, published by the Bank of Russia and the average bank interest rates on deposits that occurred during the relevant periods individuals.
It should also be noted that this rule for calculating interest for the use of other people's funds has been in effect only since June 1, 2015. Before this time, the amount of interest was determined by the discount rate of bank interest at the creditor's place of residence, and if the creditor is a legal entity, at its location.
Thus, we draw your attention to the fact that currently the calculation of interest under Article 395 of the Civil Code of the Russian Federation has become significantly more complicated. In order to calculate the amount of interest, it is necessary to take the average bank interest rates on deposits of individuals separately for different federal districts. It should also be taken into account that rates change at least once a month, therefore, the lender needs to carry out constant monitoring in order to determine what interest rate should be applied in a particular period of delay.
| Debt amount: | rubles US dollars euros Indicate the amount of debt along with VAT, if the amount of debt is subject to VAT taxation | ||
| Overdue period: | Beginning of period | ||
| Beginning of period Next day after payment due date | End of period The day of actual repayment of the debt or another date on which interest is calculated if the debt is not repaid | ||
| Region: |
Moscow, St. Petersburg, Altai Territory, Amur Region. Arkhangelsk region Astrakhan region Belgorod region |
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| Bryansk region | |||
| Vladimir region |
Irkutsk regionKabardino-Balkarian Republic, Kaliningrad region. Calculator 395 of the Civil Code of the Russian Federation simplifies the calculation process if it is difficult to do it yourself due to the large number of periods of delay. Determining the amount of interest without repayment termsWhen using someone else's money, an agreement is concluded that specifies the terms of interest payments in case of failure to fulfill obligations. If the contract did not specify the period during which the interest must be repaid, then the citizen should pay attention to the procedures of the current legislation. The deadline for return is specified in Article 810 of the Civil Code. Typically, the borrower must repay the full amount of the loan within 30 calendar days from the date set by the lender. It is automatically established from the moment a written application is sent to the debtor demanding a refund and compensation for non-payment. For correct calculation, it is necessary to determine the appropriate period from which the day of delay begins. How to calculate the contractual penalty?Individuals can independently set the interest to be paid. The legislation cannot limit the size of these rates if each party to the agreement agrees to the daily accrual of 1% of the debt amount. According to Article 395 of the Civil Code, by decision of the court of the Russian Federation, the interest rate is subject to reduction if it does not correspond to the established consequences of overdue debts. But it should not be less than the average bank interest rates on household deposits. If the borrower does not agree with its size, then he can file an application with the court, which will hear the case. How to calculate the penalty for periodic payments?Periodic payments, such as rent, differ in that when calculating the penalty interest, the sum of all periods of use of someone else's property is taken. If the tenant of the property has paid only the first month out of the six established, then the interest will be paid for separate five periods. The result is differentiated amounts of penalties for each month. To determine the final size, you need to add all the amounts together. Calculation of interest according to ST 395 of the Civil Code of the Russian Federation calculator - 2019A modern online service is an excellent assistant in. Self-calculation takes a lot of time and is considered an unreliable way to determine the key rate. This process should be handled by a lawyer, not an accountant, so calculate online calculator 395 will be much easier than manually. The exact result is determined after entering the required data in the appropriate fields. At the user's request, a detailed algorithm of actions is disclosed, which can be submitted to court proceedings. The sequence for calculating interest on deposits of individuals is quite simple.
After entering the information, the user needs to click the “Calculate” button to obtain the correct amount of the debt. Online service calculations are useful in the following cases:
395 of the Civil Code of the Russian Federation, the calculator provides great benefits to interested citizens. For convenience, the service provides automatic setting of refinancing rates. Therefore, the user only needs to indicate the periods of penalties, the full debt amount and its location. Thanks to the service, the user not only receives an accurate result and a detailed report for each period of the penalty, but also gets acquainted with the information necessary for the case. The site helps you navigate numerous articles of Russian legislative codes, as well as their amendments. Nuances when calculating percentagesAccording to Article 395 of the Civil Code of the Russian Federation, during the withdrawal of the principal debt, the lender has the right to demand that the borrower accrue bank interest on deposits if the key payment is late. If the agreement does not define the rules for calculating interest, as well as their amount, then the party aggrieved by non-payment can still obtain payment of the required amount through the court. This possibility also exists in non-contractual relations, when the terms of use and return of funds are not officially confirmed. The creditor should note that he may demand payment of the required amount on the day of actual payment of the principal debt. Average bank interest rates on individual deposits also determine the amount of the penalty. But thanks to the calculator, you no longer need to constantly monitor their changes, because they are installed automatically. Calculation of tax rates is necessary for the sphere of civil legal relations. The calculation of interest according to ST 395 of the Civil Code of the Russian Federation is used in situations of renting premises, various sales contracts, loans, goods supplies, and the provision of services. In 2019, calculating interest has become much more complex. The independent determination process requires time and effort, so a calculator was created to make it easier. In order to make the calculation, the user must correctly fill in all the fields of the service - the total amount of debt, the location of the creditor and the settlement period of the debt. Due to the built-in monitoring of bet sizes, the citizen does not need to manually look at his website. They change almost monthly, so many people indicated the rate incorrectly and received an inaccurate answer. | ||
The article will help you calculate the arrears and determine the percentage for the use of other people’s funds according to.
The seller (contractor) is interested in the buyer (customer) fulfilling his monetary obligation in a timely manner. In case of late payment, the seller (buyer) will be interested not only in the counterparty paying his debt, but also in collecting sanctions from him for late payment.
The seller (contractor), in case of late payment by the buyer (customer), may apply the following measures to the violator:
- collect interest for failure to fulfill a monetary obligation (clause 1);
- collect a penalty for late fulfillment of a monetary obligation (clause 1);
- recover damages due to late payment (clause 1);
- foreclose on the goods transferred to the buyer and unpaid (clause 1, clause 5);
- demand the return of the transferred goods (clause 2).
General provisions the procedure for application and the amount of these sanctions are contained in the Civil Code of the Russian Federation. At the same time, part of these provisions the law allows be specified in the contract itself. In case of late payment, the seller (contractor) will be interested in collecting from the counterparty the largest possible amount of sanctions for late payment for goods (work). In this case, the seller (contractor) can establish in the contract a specific type of sanctions from those provided for by law, the collection of which is most in line with his interests.
Consequently, when agreeing on the text of the contract, the seller’s (contractor’s) task will be to include in the contract the most favorable terms for the seller (contractor) regarding the collection of sanctions for late payment.
So, one of the types of security for a monetary obligation is the possibility of collecting additional interest. How to calculate the interest for using someone else’s money if the debt is more than two years old and the refinancing rate has changed several times?
They are called “ interest on the use of someone else's money in case of late payment”, are established and collected only if a party violates the terms of the contract (delay in payment for the delivery of goods, unjustified evasion of debt repayment, unjust enrichment, etc.). By general principles rights, these funds are a kind of guarantee that the money will be paid on time, because no one wants to incur unnecessary expenses.
Interest under Article 395 of the Civil Code of the Russian Federation can be collected as additional sanctions, in addition to those specified in the obligation itself. This is liability for non-compliance with the terms of the contract established by law.
That is, if your counterparty is in no hurry to pay off the debt, then its responsibility can be “heavier” by calculating interest on the use of your money and presenting it in court for collection.
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Article 395. Liability for failure to fulfill a monetary obligation
1. For the use of someone else’s funds as a result of their unlawful retention, evasion of their return, other delay in their payment, or unjust receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment. The amount of interest is determined by the existing rate at the place of residence of the creditor, and if the creditor is a legal entity, at its location bank interest rate on the day of fulfillment of the monetary obligation or its corresponding part. When collecting a debt in court, the court may satisfy the creditor's claim based on the discount rate of bank interest on the day the claim was filed or on the day the decision was made. These rules apply unless a different interest rate is established by law or agreement.2. If the losses caused to the creditor by the unlawful use of his funds exceed the amount of interest due to him on the basis of paragraph 1 of this article, he has the right to demand compensation from the debtor for losses in the amount exceeding this amount.
3. Interest for the use of someone else's funds is charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the accrual of interest by law, other legal acts or agreement.
4. If the agreement of the parties provides for a penalty for non-fulfillment or improper fulfillment of a monetary obligation, the interest provided for in this article is not subject to collection, unless otherwise provided by law or agreement.
5. Calculation of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled when the parties carry out business activities, the use of compound interest is not allowed, unless otherwise provided by law or agreement.
6. If the amount of interest to be paid is clearly disproportionate to the consequences of violation of the obligation, the court, at the request of the debtor, has the right to reduce the interest provided for in the contract, but not less than to the amount determined based on the rate specified in paragraph 1 of this article.
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From August 1, 2016, to calculate interest on the use of other people’s funds, it will be necessary to use the key rate of the Central Bank of the Russian Federation
The amount of interest for the use of other people's funds will need to be calculated based on the amount that was in effect during specific periods of delay. The corresponding amendments to the amendments introduced by Federal Law No. 315-FZ dated 07/03/16 will come into force on August 1, 2016.
From August 1, 2016, interest will need to be determined differently. When calculating, it will be necessary to take into account not the average deposit rates, but the key rate of the Central Bank of the Russian Federation, valid in the relevant periods. In this case, the law or agreement may still establish a different interest rate.
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Penalty rate, how can you calculate the interest for using someone else's money?
The amount of interest can be determined in the contract. If the amount of interest is not specified in the agreement, it is determined according to average bank interest rates on deposits of individuals at the place of residence of the creditor - an individual (location of the creditor - organization), which are published on the website of the Bank of Russia.
If non-payments lead to court proceedings, then the percentage of the bank rate on the day of the court verdict or on the date the claim was sent to court is taken into account.
To calculate the amount of interest for using someone else's money, a special calculator is used. It is available on many legal websites; a resource visitor just needs to enter the amount of overdue debt and the bank rate.
Meanwhile, it should be borne in mind that the courts, as a rule, require a detailed written calculation, and not a ready-made amount, since it always requires verification. Therefore, if you need a calculation for filing statement of claim, it is better to know the algorithm for calculating interest, do the calculations yourself on paper or in Excel, and use a calculator for calculating interest for the use of other people's funds for control.
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FORMULA and EXAMPLE of calculating interest under Article 395 of the Civil Code of the Russian Federation for the use of other people's funds
To calculate interest under Article 395 of the Civil Code of the Russian Federation, you need to know that:
- The amount of debt must be indicated including VAT.
- The day of payment of funds is included during the period of delay in fulfilling a monetary obligation.
- Overdue period should be determined based on 30 days in a month and 360 days in a year or in calendar days
So, in order to correctly calculate interest, you need to know the amount of overdue debt, the number of days overdue and the average bank rate.
The Supreme and Supreme Arbitration Courts of the Russian Federation in the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds” explained that in the event of a change in the bank interest rate during the delay, it is advisable to use the value that is closest to all rates during the specified period. For example, the debt was 200 days, during which the bank interest was 7%, 8% and 8.5%. Based on the above recommendations, the calculation should be based on a rate of 8%.
From the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14:
2. When calculating the payable annual interest at the refinancing rate Central Bank Russian Federation, the number of days in a year (month) is taken equal to, respectively 360 and 30 days, unless otherwise established by agreement of the parties, rules binding on the parties, as well as business customs.
So, the calculation of interest for the use of other people's funds is carried out according to the formula:
Interest amount
Debt amount
Average Bank Rate valid during the period of delay
Number of days overdue
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Calculation of the amount of interest for the use of other people's funds
The formula for calculating interest can be given in the following example.
Initial data for calculation:
- The amount of debt under the loan agreement in Kirov is 100,000 rubles.
- Weighted Average Bank Rate in the Volga Federal District - published on the website of the Central Bank of the Russian Federation
- Overdue period from 01.01.2015 to 31.08.2015
Calculation of interest for the use of other people's funds under Article 395 of the Civil Code of the Russian Federation
With a debt amount of 100,000 rubles. (Volga Federal District)
Interest for the use of other people's funds is:
- from 01/01/2015 to 05/31/2015 (151 days): 100,000 × 151 × 8.25% / 360 = 3,460.42 rubles.
- from 06/01/2015 to 06/14/2015 (14 days): 100,000 × 14 × 11.15% / 360 = 433.61 rubles.
- from 06/15/2015 to 07/14/2015 (30 days): 100,000 × 30 × 11.16% / 360 = 930 rub.
- from 07/15/2015 to 08/16/2015 (33 days): 100,000 × 33 × 10.14% / 360 = 929.50 rubles.
- from 08/17/2015 to 08/31/2015 (15 days): 100,000 × 15 × 10.12% / 360 = 421.67 rubles.
Total: RUB 6,175.20
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CALCULATOR for calculating interest for the use of other people's funds according to Article 395 of the Civil Code of the Russian Federation
It should be borne in mind that if the calculated amount of interest for the use of someone else's money clearly exceeds the results of a violation of a monetary obligation, the court is allowed to reduce it at its own discretion, i.e. pity the offender.
In this case, the courts refer to, which allows you to reduce the amount of interest.
By general rules, the lack of money from the debtor cannot be a reason for releasing him from paying the debt. And if we talk about the order of repayment, then funds under Art. 395 of the Civil Code of the Russian Federation are credited only after the amount of the principal debt has been paid. Besides, the claimant has the right to accrue them up to the day of fulfillment of obligations under the contract.
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At WHAT RATE should I calculate interest for using other people's funds?
The seller (contractor), when agreeing on the text of the contract, can indicate in the contract the rate at which interest will be charged in case of late payment. For example, according to key rate Bank of Russia. This is due to the fact that otherwise the debtor would essentially benefit from his misconduct by illegally withholding someone else's money and, in fact, receiving credit at a rate several times lower than if he took out a loan from a bank. In other words, it is currently impossible to get a loan anywhere at a rate lower than the key rate of the Bank of Russia. Such a condition will discipline the counterparty to fulfill its monetary obligations in good faith.
The key rate of the Central Bank of the Russian Federation is currently the main indicator of direction monetary policy Bank of Russia.
However, you need to keep in mind that the period of debt arrears can be quite long, up to several years. And the key rate itself was introduced only on September 13, 2013. In addition, its size has constantly changed over time, both up and down. For this reason, applying the key rate for the entire period of arrears may result in the creditor receiving less interest than if he had charged interest at average rates on personal deposits. To avoid this kind of situation, you need to carefully weigh the possible risks of collecting interest at the key rate of the Central Bank of the Russian Federation and choose the best option for yourself.
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Take advantage interest calculator for using other people's funds for 2020! Get a detailed estimate on the Legal Ship legal company portal!
This is a universal penalty that can be applied in almost all social relations associated with the emergence of property claims and any kind of damage.
You need to know the date the debt was incurred and the amount of the debt. Indicate in the appropriate sections of the calculator if you had payments during the period or if additional amounts were taken out.
Select the desired federal district where controversial public relations have arisen, and the system will automatically select from the directory interest rates, established by the Bank Russia.
Our online calculator for Article 395 of the Civil Code of the Russian Federation 2020 will help you easily find out the amount of interest.
Including for the entire period of use of the loan, lease, any type of damage and losses, taking into account partial repayment and increasing debt.
You no longer have to spend a long time and painstakingly studying the complex aspects of legislation and judicial practice governing issues financial relations. You can safely save on contacting a lawyer or lawyer to obtain a calculation of the amount owed.
Use the Legal Ship law firm service, and you can instantly receive a calculation that will be useful to you in resolving a dispute and restoring your violated rights.
TIn this way, you can save a lot of your time studying legal requirements. Ourinterest calculator for using other people's money on2020 year will instantly make the necessary calculation! Fill out the required fields and see how simple and convenient it works. Contact our lawyers for help in drafting any competent legal document.
