When will the debtor cover the costs of debt collection?
The most popular methods of debt collection are telephone reminders, written reminders and requests for payment. Independent attempts to recover debts are often ineffective and time-consuming, as a result of which entrepreneurs have to wait for the case to be resolved or use professional debt collection assistance from external companies.
When outsourcing debt service, entrepreneurs try to shift the costs of debt collection onto the debtors as much as possible. It should be borne in mind that some methods of charging debtors with this type of costs may be illegal and thus not binding for those who are in arrears.
Interest for delay
The basic penalty for unscrupulous debtors is interest on untimely fulfilled obligations. According to the wording of Art. 481 § 1 of the Civil Code (hereinafter: the Civil Code), when the debtor is in delay with the payment, the creditor may demand interest for the delay, even if he has not suffered any damage and even if the delay was a consequence of circumstances for which the debtor is not responsible.
Pursuant to Art. 481 § 2. of the Civil Code if the interest rate for the delay was not specified in advance, statutory interest is due. However, when the claim bears interest at a rate higher than the statutory rate, the creditor may demand default interest at this higher rate.
In addition, if the delay was caused by the debtor, in addition to interest, the creditor may also demand compensation for the damage resulting from the delay caused by him, on the terms set out in Art. 477 of the Civil Code The Supreme Court - Civil Chamber also spoke in this matter in the judgment of June 21, 2001, file ref. no. IV CKN 119/2001, in which it ruled: “In the event of the debtor's delay in making the payment, the creditor may demand not only interest for the delay, but also compensation for the damage on general terms. It must, however, show that it has suffered damage in excess of the interest owed. '
The most common clause is the stipulation that in the event of improper performance of the contract, the creditor will charge the debtor with a contractual penalty of a specified amount or percentage. This solution is also legal under Art. 483 of the Civil Code but does not apply to late payment.
Contractual penalty is effective only with regard to non-pecuniary benefits. In the event of a contractual provision relating to late payment - pecuniary benefits, it will be invalid by operation of law and will not be binding on the debtor in any way.
Flat fee and percentage rate for debt collection
It is also worth mentioning a fairly popular practice, which consists in charging the debtor with a flat-rate or percentage fee for individual debt collection activities.
The basis for this type of benefits would be a flat-rate price list, which will be included in the contract or in the general terms and conditions of contracts used by a given entrepreneur.
Lump sum fees from the debtor for debt recovery is effective when only entrepreneurs are parties to the contract. It will not be effective against consumers.
Do you run a company and have questions?
Take advantage of the expert advice of the Entrepreneur's Guide
Online advice for businessesIt is worth getting acquainted with provisions No. 978, 1767, 1768, 1796, 1955 or 1956 in the register of prohibited clauses kept by the President of the Office of Competition and Consumer Protection (LINK TO THE REGISTER: http://uokik.gov.pl/reawod/). The Office questioned the legality of charging lump sum fees by creditors from debtors who have the status of consumers.
Court debt collection
The entrepreneur may also count on public institutions when asserting his rights due to the default of the debtor. In such a situation, the creditor may bring an action for payment. After obtaining a legally valid order for payment or a judgment, the case is referred to a bailiff who will carry out enforcement within the limits of the law.