Collection costs covered by the debtor?

Can the costs of debt collection be transferred to the debtor?

Probably every creditor would like to transfer the costs of debt collection to the debtor. All the more so if independent attempts to recover the debt do not help and the creditor decides to use professional debt recovery assistance. Does the law allow for such a possibility? Let's check.

Collection costs - interest for delay

The basic penalty for defaulting debtors is default interest. Following Art. 481 § 1 of the Civil Code (hereinafter: the Civil Code), it should be stated that when the debtor is in delay with payment, the creditor may demand interest for the delay, even if he has not suffered any damage and the delay was a consequence of circumstances for which the debtor is not responsible.

Important! 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, if, according to the contract, the debt 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 caused by the delay in payment. These principles are referred to in Art. 477 of the Civil Code

The Supreme Court - Civil Chamber also spoke in the above case in the judgment of June 21, 2001, file ref. no. IV CKN 119/2001, in which it ruled as follows: "In the event of the debtor's delay in the payment of the payment, the creditor may demand not only interest for the delay, but also compensation for the damage on general terms. percentage".

Contractual penalty for late payment is illegal

In economic (commercial) contracts, a 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, the amount of which is specified in amount or percentage. The application of this solution is allowed by Art. 483 of the Civil Code

Important! Contractual penalty may be applied only to non-cash benefits, which means that no contractual penalty may be required for late payment.

Lump sum fee and percentage rate for debt collection transferred to the debtor

It is also worth mentioning the popular practice of charging the debtor with lump sum or percentage fees for individual debt collection activities.

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The basis for this type of action would have to be a provision in the contract and a flat-rate pricelist, which would be included in an appendix to the contract or in the general terms and conditions of contracts specified by a given entrepreneur.

Important! Lump-sum collection of fees from the debtor for debt collection is effective when the parties to the contract are only entrepreneurs (companies) - it will not be effective for consumers (private persons).

 

In this matter, one should read the provisions no. 978, 1767, 1768, 1796, 1955 and 1956 in the register of prohibited provisions kept by the President of the Office of Competition and Consumer Protection. The consumer office questioned the legality of lump sum fees charged by creditors to consumer debtors.

Court debt collection may be a cost passed on to the debtor - but not always!

The entrepreneur, in asserting his rights due to the default of the debtor, may also count on the court. 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. Most of the court and bailiffs' costs are transferred to the debtor.

The costs related to debt collection cannot always be passed on to the debtor, which should be borne in mind by the creditor when taking steps to recover the debt.