How to Determine Interest Rate for Late Payment Obligations in Commercial Transaction? | ANT Lawyers

The most important obligation of the parties to a commercial contract is to deliver or provide services and pay in full and on time as agreed. However, in reality, there are times that one party or the parties fail to perform their payment obligations, causing damages to the other party. In particular, in the case of a breach of the payment obligation, the aggrieved party may request the person having caused damage to pay late payment obligations interest. Potential dispute on this matter might arise between parties.

Article 306 of the Commercial Law 2005 provides for the application of the interest rate due to the delay of payment as follows: Where a contract-breaching party delays making payment for goods or payment of service charges and other reasonable fees, the aggrieved party may claim an interest on such delayed payment at the average interest rate applicable to overdue debts in the market at the time of payment for the delayed period, unless otherwise agreed or provided for by law.

The interest rate for late payment of obligations in commercial business is applied according to the average interest rate on overdue debts in the market at the time of payment corresponding to the late payment period, unless otherwise agreed or otherwise provided by law.

However, the Commercial Law 2005 at that time did not have a specific regulation on the average interest rate of overdue debts on the market. The Resolution No. 01/2019/NQ-HDTP has detailed instructions on this interest rate. When determining the interest on late payments, the Court shall determine the interest rate on late payments on the basis of average interest rates on overdue debts announced by at least 03 (three) commercial banks (such as Vietcombank, VietinBank, Agribank, etc.) whose headquarters, branch or transaction office is located in the same province or central-affiliated city where the headquarters of the Court in charge of the case is located at the payment date (the date of first-instance trial), except otherwise agreed upon by the parties or regulated by laws.

In case of late payment liabilities defined in a contract which includes the parties’ agreement on interest payment, the judgment debtor is liable to pay interest on the outstanding judgment debt at the agreed interest rate which must be conformable with applicable laws; if the agreed interest rate is not available, the Court shall decide application of the interest rate prescribed in Clause 2 Article 468 of the 2015 Civil Code. In case interests are charged on amounts payable to the state budget as regulated by laws, the judgment debtor is liable to pay an interest on the judgment debt arrears calculated at the interest rate prescribed in Article 357 or Article 468 of the 2015 Civil Code, unless otherwise prescribed by laws.

In order to protect the best interest of parties, it is important to consult with dispute lawyers in Vietnam for advice.

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How to Determine Penalty and Compensation for Damages from Breach of Commercial Contract? | ANT Lawyers

When drafting a contract, especially a commercial business contract, in addition to basic provisions such as the object, scope of the contract, value and payment method, rights and obligations of the parties, dispute settlement, information confidentiality, and the regulations on the penalty for a breach of the contract and damage compensation are also very important.

Penalty for a breach of the contract

Under the provisions of the Commercial Law 2005, penalty for a breach means that the breaching party must pay a sum of money to the aggrieved party due to the breach of the violating party if the parties agree in the contract on the fine for a breach. Thus, the penalty for a breach only arises when there is a breach of the contract by the violating party and the parties have agreed on the penalty.

The law gives the right to agree on sanctions for violations to contractual parties, but this freedom to negotiate is limited. Specifically, the parties are only allowed to agree to a maximum penalty of 8% of the breached contractual obligation value, except traders providing assessment services issue assessment certificates showing incorrect results caused by their unintentional faults, they must pay penalty therefor to customers. The penalty level shall be agreed upon by the parties but must not exceed ten times the assessment service charge. In fact, the dispute settlement agency also bases on the prescribed limit of the law to handle; therefore, even if the parties agree to a higher penalty for a breach, it is not applicable in practice.

Compensation for damage

Compensation for damage means a remedy whereby the breaching party pays compensation for the loss caused by a contract-breaching act to the aggrieved party. The basis for arising damages is a breach of the contract; there is material loss and act of breaching the contract is the direct cause of the loss. Difference from penalty for a breach, liability to compensate for damages caused by breaches of contract performance obligations arises even in cases where the parties do not have an agreement on this matter. Besides, the law does not provide any regulation to limit the amount of compensation; it is based on the actual damages that the aggrieved party can prove.

When participating in the transaction, if both types of sanctions are specified in the contract, they should clearly specify the basis for the amount of compensation for the damages and the penalty for violation.

In fact, there are many cases where the parties do not agree clearly or agree on the penalty but the amount of the penalty exceeds the prescribed level, the excess could be considered invalid. The parties should also note that there will be no agreement on late payment interest on the infringement penalty and the amount of compensation damages.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang, will help customers conveniently drafting contracts and assist in resolving contract disputes.

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