To simplify the procedure for calculating interest for unlawful use cashYou can use a special calculator operating online.
This method of determining the amount to reimbursement will allow creditors to draw up a statement of claim, correctly specifying the amount of interest on reimbursement, and the debtor check how correct all calculations were carried out.
As a result, the calculated amount will be as accurate as possible and reliable.
Requirements of the law on monetary obligations
What is the difference between the new article 317.1 of the Civil Code of the Russian Federation from the currently existing article 395 of the Criminal Code of the Russian Federation?
Differences in the following:
- In art. The 395 GK of the Russian Federation we are talking about illegal use of finances, and in the new article 317.1 of the Civil Code of the Russian Federation - on the legitimate use of funds. Interest accrued under Art. 317.1 Civil Code of the Russian Federation are not a measure of responsibility, while interest under Art. The 395 Civil Code of the Russian Federation is the penalty and the minimum guarantee for compensation for inflationary losses. Thus, the legislature decided to provide guarantees to creditors who receive an amount of equal income on the reimbursement of the depositor.
- Article 317.1 of the Civil Code of the Russian Federation is used to accrual interest on commercial obligations and implies the legitimate use of foreign funds. This article applies if the parties have not defined the "cost value" within their obligations themselves. New article Provides a creditor to the right to receive funds from the debtor as compensation for legitimate use of finance and in the amount of the average deposit rate - the key interest rate.
And if B. transitional period For these articles, 2 different indicators were used, namely in 2015-2016 the average deposit rate and the key rate of the Central Bank of the Russian Federation were not equal to each other, then from 01.08.2016 the average rate of deposits is no longer used. Now there is no refinancing rate, no average bet on deposits, but is the key rate of the Central Bank of the Russian Federation.
Some time for the accrual of a fine in the amount of the rates on the deposits of individuals under Art. 395 of the Civil Code of the Russian Federation used published information of the Bank of Russia in different ways federal Districts. For the calculation of interest, the rate was used, which was used within a specific region of fulfillment of obligations at the time of the conclusion of the contractual agreement. Now and for article 395 of the Civil Code of the Russian Federation there is a key rate of the Bank of Russia.
According to the Resolution of the Plenum of the Supreme Court of Russia No. 7 of 03.24.2016 (paragraph 39), both articles can be applied at the same time and the lender is entitled to apply for refunds, both for the unlawful use of funds and for legitimate, but for different periods time. That is, before the moment of payment, it can be applied by Art. 317.1 of the Civil Code of the Russian Federation, and from the moment of the duration of the term - applies Art. 395 Civil Code of the Russian Federation.
Priority of repayment of obligations under Article 395 of the Civil Code of the Russian Federation
According to Art. 319 of the Civil Code of the Russian Federation, first, with the debtor holds the cost of the creditor, then interest and only then the primary debt. Many are wondering if it is possible to change the order of repayment of obligations and is it possible to count the amount listed within the framework of the action of Art. 395 Civil Code of the Russian Federation on cash penalty.
In fact, these types of compensation differ from each other in economically and cannot be interchangeable. Interest under the contract is the obligations that need to be compensated according to the loan agreement or a loan obligation for the use of funds and where in the absence of a certain bet is applied by Art. 317.1 of the Civil Code of the Russian Federation. Interest accrued under Article 395 of the Civil Code of the Russian Federation are penalties for skipping the amount of funds and for illegal use of finance - these costs are paid primarily.
Thus, the situation is such that without paying penalty interest, legal interest, first of all, the obligated side will not be able to proceed with the repayment of the main body of debt.
So, if we are talking about interest paid within the framework of the basic obligation, then the parties can agree on the percentage standings, restructuring, changing the debt service scheme. As for the amount of interest for the unlawful use of funds, the order of repayment of obligations is changed cannot be changed. Even if it is allowed in judicial order, this decision is not legally strength.
A sample calculation of interest for the use of other people's money provided for in Article 395 of the Civil Code of the Russian Federation.
This calculation must be attached to the claim for the recovery of debt with interest for the use of other people's money, which is specifically provided.
IN ______________________________
(Court name)
Plaintiff: __________________________
(FULL NAME, address)
Calculation of interest
for the use of other people's money
In accordance with Article 395 of the Civil Code of the Russian Federation
The period for which the calculation was made is _____ days, based on the start of the term "___" _________ ____ to the date of appeal to the court "___" _________ ____
The key rate of the Bank of Russia, in this period it changed and amounted to ____ percent per annum.
The amount of the amount to be paid interest is _______ rubles.
Calculation: (sum) x (period of delay) x (key rate 1) / 36000 + (sum) x (period of delay) x (key rate 2) / 36000 \u003d _______ rub.
The amount of interest for the use of other people's money will be _______ rubles.
Date "___" _________ ____ ____ Signature _______
Note:
- for calculation, it is used 360 days a year or 30 days in a month.
- the key rate of the Bank of Russia is taken on the day of the presentation of the lawsuit or the day of the decision.
- the court can reduce the amount of interest at the explicit disproportion of the consequences of the delay in the fulfillment of the monetary obligation.
The article will help make the calculation of delay, determine the percentage for using other people's money according to.
The seller (contractor) is interested in the buyer (customer) in a timely manner fulfilled its monetary commitment. In case of delay in payment, the seller (buyer) will be interested not only in paying the counterparty of his debt, but also in recovery from it sanctions for late payment.
The seller (contractor) in case of delay in payment by the buyer (customer) can apply the following measures to the violator:
- recover interest on non-fulfillment of monetary obligations (p. 1);
- to recover a penalty for the delay in the fulfillment of the monetary obligation (paragraph 1);
- recover damages due to the delay in payment (clause 1);
- to draw a penalty for the transferred to the buyer and unpaid goods (paragraph 1, paragraph 5);
- complete return the transmitted goods (paragraph 2).
General provisions On the procedure for application and the size of these sanctions are contained in the Civil Code of the Russian Federation. At the same time, part of these provisions the law allows specify in the contract itself. In case of delay in payment, the seller (contractor) will be interested in recovering from the counterpart as a larger amount of sanctions for late payment of goods (work). At the same time, the seller (contractor) can establish a specific type of sanctions in the contract from the stipulated in the law, the recovery of which most meets its interests.
Consequently, when agreeing the text of the contract, the Seller's task (contractor) will be to register the conditions for the recovery of sanctions for late payment in the contract.
So, one of the types of security for the monetary obligation is the possibility of recovering additional interest. How to calculate the percentage for using other people's money, if a debt of more than two years and the refinancing rate has repeatedly changed?
They are called " interest for the use of other people's money in the delay of payment", Established and accumulated only in violation of the condition under the contract (delay in payment for the supply of goods, unreasonable evasion from the return of debt, unjust enrichment, etc.). By general principles The rights of these funds are a kind of guarantee that money will be paid on time, because it does not want to bear extra expenses.
Interest under Article 395 of the Civil Code of the Russian Federation can be accumulated as additional sanctions, in addition to those are spelled out in the obligation. This is responsible for non-compliance with the terms of the contract established by law.
That is, if your counterpart is not in a hurry to pay the debt, then its responsibility can be "dried up," calculating interest for the use of your money and presenting them to recovery.
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Article 395. Responsibility for non-fulfillment of monetary obligation
1. For the use of other people's money due to their unlawful retention, deviations from their return, other delay in their payment or unjust receipt or savings at the expense of another person are subject to pay interest in the amount of these funds. Percent size is determined by the existing lender in the residence, and if the lender is entity, at the place of his stay accounting rate bank interest On the day of the fulfillment of the monetary obligation or its respective part. When collecting debt in court, the Court may satisfy the creditor's claim, based on the accounting rate of the bank interest on the day of the claim or on the day of the decision. These rules apply if other percentage size is not established by law or contract.2. If the damage caused by the creditor by unlawful use of its cash exceeds the amount of interest due to it on the basis of paragraph 1 of this article, it has the right to demand damages from the debtor in a part in excess of this amount.
3. Interest for the use of other people's funds are charged on the day of payment of these funds to the lender, if the law, other legal acts or the contract is not established to accrual interest for a shorter period.
4. In the case when the Agreement of the Parties provides a penalty for non-performance or improper performance of a monetary obligation, the interest provided for in this article is not subject to recovery, unless otherwise provided by law or contract.
5. Accrual percent percent (complex interest) is not allowed unless otherwise established by law. For obligations, executable in the implementation of entrepreneurial activities, the use of complex interest is not allowed unless otherwise provided by law or contract.
6. If the amount payable is clearly disproportionated by the consequences of the impairment of the obligation, the court at the application of the debtor is entitled to reduce the interest provided by the contract, but not less than the amount specified on the basis of the rate specified in paragraph 1 of this article.
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From August 1, 2016, to calculate interest for the use of other people's money, 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 money will need to be calculated on the basis of which acted in specific periods of delay. Appropriate amendments to Federal law 07/03/16 No. 315-FZ, will take effect on August 1, 2016.
From August 1, 2016, interest will be necessary to determine otherwise. When calculating, it will be necessary to take into account not average rates on deposits, but a key rate of the Central Bank of the Russian Federation acting at the appropriate periods. In this case, the law or contract can still be set by other percentage.
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A bet of penalties, how can I calculate the percentage for using other people's money?
Percentage size can be defined in the contract. If the contract is not specified in the contract, then it is determined by middle rates of bank interest By deposits individuals At the place of residence of the creditor - an individual (the location of the creditor - an organization), which are published on the Bank of Russia's website.
If defaults brought to judicial trialThe interest rate of the banking rate on the day of the judicial verdict or the date of the lawsuit is taken into account.
To calculate the amount of interest for the use of other people's money, a special calculator is applied. It is on many legal sites, a resource to the visitor to enter the amount of overdue debt and banking bid..
Meanwhile, it should be borne in mind that the courts tend to require a detailed written calculation, and not a finished amount, since it always requires verification. Therefore, if you need a calculation for filing of the statement, it is better to know the percent count algorithm, on paper or in exile to make calculations, and the calculator for calculating interest for using other people's money to use to control.
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Formula and an example of calculating interest under Article 395 of the Russian Federation for the use of other people's money
To calculate interest under Article 395 of the Civil Code of the Russian Federation, it is necessary to know that:
- Debt amount should be indicated with VAT.
Note: Decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of 09/22/2009 No. 5451/09 in case No. A50-6981 / 2008-M-10
- Cash payment is included During the delay in the fulfillment of the monetary obligation.
Note: Resolution of the Presidium of the Supreme Court of the Russian Federation of January 28, 2014 No. 13222/13 in case No. A40-107594 / 12-47-1003.
- Period of delay must be determined at the rate of 30 days in a month and 360 days 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 of delay and the average bank bid.
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 of 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 money" clarified that in case of bank change The percentage during the delay is applied expedient to the value that is closest to all rates at the specified period. For example, debt amounted to 200 days during which a bank percentage was 7%, 8% and 8.5%. Based on the above recommendations, the basis of the calculation should be put in the amount 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 of October 8, 1998 №13 / 14:
2. When calculating payable annual interest at refinancing rate Central Bank Russian Federation The number of days a year (month) is accepted equal, respectively 360 and 30 days unless otherwise established by the Agreement of the Parties, mandatory for the parties to the rules, as well as customs of business turnover.
So, the calculation of interest for the use of other people's money is made by the formula:
Amount percent
The amount of duty
Medium banking rate in force during delay
Number of days of delay
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Calculation of interest for the use of other people's money
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 banking rate In Volga FD - published on the website of the Central Bank of the Russian Federation
- Period of delay from 01/01/2015 to 08/31/2015
Calculation of interest for the use of other people's money under Article 395 of the Civil Code of the Russian Federation
With the amount of debt 100 000 rubles. (Volga Federal District)
interest for the use of other people's money make up:
- from 01/01/2015 to 05/31/2015 (151 days): 100 000 × 151 × 8.25% / 360 \u003d 3 460.42 rub.
- from 01.06.2015 to 06/14/2015 (14 days): 100 000 × 14 × 11.15% / 360 \u003d 433,61 rub.
- from 06/15/2015 to 07/15/2015 (30 days.): 100 000 × 30 × 11.16% / 360 \u003d 930 rub.
- from 07/15/2015 to 08/15/2015 (33 days): 100 000 × 33 × 10.14% / 360 \u003d 929.50 rubles.
- from 08/17/2015 to 08/31/2015 (15 days): 100,000 × 15 × 10.12% / 360 \u003d 421,67 руб.
Total: 6 175,20 rub.
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Calculator calculating interest for the use of other people's money under Article 395 of the Civil Code of the Russian Federation
It should be borne in mind that if the calculated amount of money percent for the use of other people's money will clearly exceed the results of the violation of the monetary obligation, the court is allowed to reduce them at their own discretion, i.e. I will regret the violator.
At the same time, the courts refer to which reduces the amount of interest.
By general rules, the lack of money from the debtor cannot cause him to exemplate him from paying debt. And if we talk about the order of repayment, then the cash under Art. The 395 Civil Code of the Russian Federation is credited only after the amount of the main debt is paid. Moreover, the recoverer is entitled to charge them up to the day of the duties under the contract.
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At what rate consider interest for the use of other people's money
The seller (contractor) when coordinating the text of the contract may indicate a bid in the contract, on which interest will be accrued with the delay in payment. For example, in key rate of the bank of Russia. This is due to the fact that, otherwise, the debtor would continue to benefit from his unlawful behavior, illegally holding other people's money and actually lending at a rate of several times less than if he took a bank loan. In other words, it is currently impossible to get a loan at a rate lower than the key rate of the Bank of Russia. Such a condition will discipline the counterparty for the conscientious performance of its monetary obligations.
The key rate of the Central Bank of the Russian Federation is currently the main indicator of the orientation monetary policy Bank of Russia.
However, it should be borne in mind that the period of delay in debt can be quite long, up to several years. And the key rate itself was introduced only from September 13, 2013. In addition, its size over time has constantly changed both in the large and smaller side. For this reason, the use of a key rate for the entire period of delay in debt may result in the creditor receives the amount of percent less than if he had charged interest on average rates on the contributions of individuals. To avoid this kind of situations, you need to weigh the possible risks of the recovery of interest on the key rate of the Central Bank of the Russian Federation and choose for yourself the best option.
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For illegal entrepreneurial activities without registration, IP exists a criminal, administrative, tax liability. Moreover, each of these types of responsibility involves its rules for fixing violations.
It is legally taken taxes from pensioners, what benefits for land taxes on land, transport tax For pensioners.
Act about making changes to the first Civil Code The Russian Federation has made significant changes to Article 395 of the Civil Code of the Russian Federation, which changed the procedure for calculating interest for the use of other people's money. Please note that the law on changes in Art. The 395 Civil Code of the Russian Federation comes into force on June 1, 2015, respectively, Article 395 of the Civil Code of the Russian Federation applies to the relationship arising after the specified date. The relationship that emerged earlier is applied to the procedure that existed before the changes. Since a purely technically, the procedure for calculating interest became more complicated, the need arose to quickly and quickly calculate interest for the use of other people's money. To quickly calculate interest for using other people's money, you can use percent calculator under Art. 395 of the Civil Code, which will help you quickly and promptly calculate interest under Art. 395 Civil Code of the Russian Federation . Calculator 395.:
With the old edition, Article 395 of the Civil Code of the Russian Federation, consider interest in the use of other people's money was much easier. For new edition Articles, to calculate interest without a special interest calculator will be difficult and long. These difficulties are associated with the fact that interest for the use of funds (as responsible for violation of the obligation) will be determined by the Central Bank of Russia and occurred at the relevant periods of the average bank interest rates on the contributions of individuals. These rules apply if other percentage size is not established by law or contract.
Watch the size of the average banking interest rates on individual deposits can be used by the consultant system or on the website of the Central Bank of Russia. On the other hand, the law provides that the amount of interest for the use of other people's funds will be determined by the contract or law. If an adequate condition of interest is defined in the contract, comparable to the degree of violation of the obligation, then the terms of interest provided for by the Treaty will apply accordingly. At the same time, when it comes to conditions of acceptable for use interest ratestipulated by the Agreement, in fact, meaning such contractual conditions under which there is no reason for the application of paragraph 6 of Art. The 395 Civil Code of the Russian Federation, which states that if the amount payable is clearly disproportionated by the consequences of the impairment of the obligation, the court at the debtor's application is entitled to reduce the interest-provided interest, but not less than the amount defined on the basis of the rate specified in paragraph 1 of Art. 395 RF. Therefore, I recommend to simplify myself and my creditors for judicial requirements, to establish adequate interests for non-fulfillment of monetary obligations, for example, within the refinancing rate. This will simplify the task of calculating interest in court.
If the percentage size will exceed the banking rate (it is clearly disproportionate), then the court will have the basis to recalculate interest in accordance with paragraph 1 of Art. 395 of the Civil Code of the Russian Federation (in other words "to use" a calculator of interest in 395 above). And if the contract was initially an adequate percentage size, it could simplify it a little and perhaps speeding up the trial. In any case, a percentage calculator will be useful for you. 395 Civil Code of the Russian Federation. This percent calculator under Art. The 395 Civil Code is suitable for both the court of general jurisdiction and the Arbitration Court. Who does not know, the world court enters the system of courts of general jurisdiction.
In addition, it was additionally introduced Art. 317.1 of the Civil Code of the Russian Federation, in which there is talking about interest
Let's deal with what the difference between Art. 395 and 317.1 Civil Code of the Russian Federation? Article 317.1 of the Civil Code of the Russian Federation is placed in the section "Fulfillment of obligations", and Art. The 395 Civil Code of the Russian Federation is placed in the section "Responsibility for violation of obligations". Therefore, interest on Art. 317.1 of the Civil Code of the Russian Federation are accrued for legitimate use of funds between commercial organizations. The question arises as far as art. 317.1 and how much it will apply. I believe that the widespread use of Art. 317.1 will not have, but interest for the use of other people's money as a responsibility for the failure to fulfill the obligations provided for by Art. 395 of the Civil Code of the Russian Federation will be widely applied. The legislation novels also include the establishment of a procedure in accordance with which interest for the use of other people's funds are charged on the day of payment of these funds to the creditor (paragraph 3 of Art. 395). The prohibition of interest accruals, in case the penalty is provided (clause 4 of article 395). Ban on interest accrual percentage ( complex percentage) (paragraph 5 of Art. 395). These provisions are valid if no other law or contract is provided. In any case, the use of a percent calculator will simplify the calculation of interest under Art. 395 Civil Code of the Russian Federation.
Due to changes in the composition of Art. The 395 Civil Code of the Russian Federation may arise difficulties in the calculation of interest charged from the debtor, including the debtor performed partly to the lender commitment.
Calculation of interest under Art. 395 Civil Code of the Russian Federation
Imagine that there is several periods of changes in the Article between the two companies in the transaction. 395. For example, take the period from June 1 to August 15, 2016.
Suppose that on May 30, your company randomly listed 100,000 rubles to another organization. On June 1, this company received an extract and learned about the payment received without reason. You demanded to return the money and eventually agreed that half the amount returns on June 15 to the expressive (reports office equipment), and the remaining money in two payments: 30 thousand - June 30 and 20 thousand - 15 August.
Repayment of debt by agreement of the parties
If part of the debt exercises by agreement of the parties, it is necessary to check whether interest is taken into account for the delay. For example, the debtor gave an explicit to the repayment of debt and interest accrued at that time. In such a situation, interest begins to accrue from the balance of debt. If the retreat will only pay off the body of debt, interest will continue to accumulate.
Partial fulfillment of obligations
When the debtor fulfills the obligation of parts, interest is first falling (Article 319 of the Civil Code of the Russian Federation). This rule applies, in particular, to percentages under Art. 317.1 of the Civil Code of the Russian Federation, but not to percentages under Article 395 of the Civil Code of the Russian Federation (clause 49, then - Resolution No. 7).
Rates for calculating interest under Art. 395 Civil Code of the Russian Federation
In the considered situation from June 1 to July 31, rates are applied on deposits of individuals, from August 1 to August 15 - a key rate. Interest believe it is from June 1 - when the acquirer learned about the unforgettable funds for receiving funds (paragraph 2 of Art. 1107 of the Civil Code of the Russian Federation). The Plenum of the Russian Armed Forces of the Russian Federation pointed out that this day can be considered the date of receipt of an extract for account operations (paragraph 58 of Resolution No. 7).
An example of calculating interest under Art. 395 Civil Code of the Russian Federation
So, the amount of debt is 100 thousand rubles. For the period: from June 1 to August 15 (76 days). Region-Central Federal District (the lender is in Moscow).
1. From the first day of delay to the repayment of the part of the obligation to the compensation.
Debt amount: 100 000 rubles.
Calculation: 100,000 × 15 × 7.9% / 366 \u003d 323 rub. 77 kopecks.
2. After paying off part of the debt to the departure and until the first payment.
The amount of debt: 50,000 rubles., Since half is repaid.
Calculation: 50 000 × 15 × 8.24% / 366 \u003d 168 rub. 85 kopecks.
3. From the first payment and before the change rate on the deposits of individuals.
The amount of debt: 20 000 rubles.
The payment received (30 thousand rubles) first exhausted the debt (50 thousand rubles) and only the residue can be taken into account in the account of the article 395 of the Civil Code of the Russian Federation. But in this case it is not.
Calculation: 20 000 × 14 × 8.24% / 366 \u003d 63 rub. 04 Cop.
4. From the date of change in deposit rates before the key rate starts.
Calculation: 20 000 × 17 × 7.52% / 366 \u003d 69 rub. 86 kopecks
5. From the date of commencement of the key bet before the final payment.
Calculation: 20 000 × 15 × 10.5% / 366 \u003d 86 rub. 07 kopecks
Total: On August 15, the debtor listed 20 thousand rubles. The lender takes into account them on debt repayment. Accrued interest in the amount of 218 rubles. 97 kopecks. Stay for the debtor.
If the debtor in a few payments extended a debt under the loan agreement, then first of the loan would be quenched, then the body of debt and thereafter (if the debt is repaid) interest under Article 395 of the Civil Code of the Russian Federation.
The contract item is contrary to the new edition of Art. 395 Civil Code of the Russian Federation
In practice, a question may arise exactly how to count interest, if the relevant provisions of the contract began to contradict the new edition of Article 395 of the Civil Code of the Russian Federation. In this case, the court will determine what the parties were due to the conclusion of the contract.
The contract may include that the Party has the right to "count interest in accordance with Article 395 of the Civil Code of the Russian Federation at the banking interest rates on the deposits of individuals." However, Article 395 contains other provisions. In this regard, the lender may require payment of interest for the period after August 1 at the key rate, since it is more than interest on deposits, and the contract item directly indicates the application of Article 395 of the Civil Code of the Russian Federation. And the debtor may insist on the application of bets on deposits, since they are less and the point of the contract allows you to calculate them.
In this situation, the court will most likely rise to the direction of the debtor, as Article 395 of the Civil Code of the Russian Federation allows parties to establish a specific amount of interest in the contract. The debtor may refer to the fact that the parties did this: they did not just refer to the article, but indicated in the contract a specific amount of interest.
Moreover, the parties led to a reference to Article 395 of the Civil Code of the Russian Federation in confirmation that they mean rates on deposits that previously envisaged this article. The true will of the parties at the time of the conclusion of the contract was to settle the issue of accrual of interest of the norm of the law acting at the time.
When the court cannot interpret the contract from the literal meaning of its conditions, he must figure out the actual will of the parties at the conclusion of the contract (see 431 of the Civil Code of the Russian Federation).
