Retail purchase and sale features of consumer protection. What you need to know about the sales contract. What else needs to be considered

49. Buyer's rights under a retail sales contract.

Buyer (consumer) - a citizen who intends to order or purchase, or ordering, purchasing or using goods (works, services) exclusively for personal (household) needs, not related to making a profit (Law of the Russian Federation of February 7, 1992 "On Protection of Consumer Rights" as amended dated January 9, 1996).

Buyer's rights:

1. Inspect the goods, before concluding a retail sale and purchase agreement, if this is not excluded due to the nature of the goods (Article 495 of the Civil Code).

2. To demand that a check of the properties or demonstration of the use of the goods be carried out in his presence, prior to the conclusion of a retail sale and purchase agreement, if this is not excluded due to the nature of the goods and does not contradict the rules adopted in retail trade (Article 495 of the Civil Code).

3. Exchange the purchased goods at the place of purchase and other places announced by the seller for a similar product of a different size, shape, dimension, style, color or configuration within fourteen days from the moment the non-food product was handed over to him (Article 502 of the Civil Code and Article 25 of the Law "On Protection of Consumer Rights"). If the seller does not have the goods necessary for exchange, the buyer has the right to return the purchased goods to the seller and receive the money paid for it. This right applies to all non-food products with the exception of the list of goods specified in the Decree of the Government of the Russian Federation of January 19, 1998 N 55.

4. Demand reimbursement of the difference between the price of the goods established by the retail sale contract and the price of the corresponding goods at the time of satisfaction of its claim, when returning the goods of inadequate quality to the seller (Article 504 of the Civil Code).

5. Require the provision of the necessary and reliable information about the manufacturer and the seller, the mode of his work and the goods sold by him (Article 8 of the Law “On Protection of Consumer Rights”).

Article 503. Rights of the buyer in case of sale of goods of inadequate quality to him

1. The buyer, to whom the goods of inadequate quality were sold, if its defects were not agreed by the seller, at his choice has the right to demand:

replacement of a poor-quality product with a product of proper quality;

a commensurate decrease in the purchase price;

immediate gratuitous elimination of defects in the goods;

reimbursement of expenses for the elimination of defects in the goods.

2. In the event that deficiencies in the goods are found, the properties of which do not allow them to be eliminated (food products, household chemicals, and the like), the buyer, at his choice, has the right to demand the replacement of such goods with goods of proper quality or a commensurate reduction in the purchase price.

3. With regard to a technically complex product, the buyer has the right to demand its replacement or refuse to fulfill the retail sale and purchase agreement and demand the return of the amount paid for the product in the event of a significant violation of the requirements for its quality (paragraph 2 of Article 475).

A retail sale contract is an agreement under which the seller undertakes to transfer the item to the buyer for use other than business.

The agreement is consensual, mutual, reimbursable, public, bilateral.

The contract is public - this means that the seller undertakes to sell the thing to an indefinite circle of persons and has no right to refuse anyone.

Parties to the contract: the seller is an individual entrepreneur,

the buyer is any citizen.

Subject: things that are not withdrawn from civil circulation, both certain by generic characteristics and individually determined, and can also be both existing and created in the future things.

Essential conditions: price, subject.

Price: set by the seller for all buyers in the same way.

The buyer's failure to pay for the goods on time is recognized as the buyer's refusal to execute the contract, unless otherwise provided by agreement of the parties.

Term: determined by the parties themselves, but can be concluded with the condition that the goods are accepted by the buyer within a certain period.

Form: consists in oral form between citizens in the amount of less than 10 times the minimum wage. The retail sales contract is considered to be concluded in the proper form from the moment the seller issues the cash or sales receipt or other document confirming payment for the goods to the buyer. The fact that the buyer does not have these documents does not deprive him of the opportunity to refer to the testimony in confirmation of the conclusion of the contract.

Types of retail sales contracts:

1) sale of goods subject to the acceptance of the goods by the buyer within a certain period of time (Art. 496 of the Civil Code of the Russian Federation). The seller is not entitled to sell the goods to another person within the period specified in the contract. The buyer's failure to appear by the agreed date means his refusal to conclude an agreement, unless otherwise provided by the agreement. In this case, the price of the goods includes the seller's expenses for maintaining the goods in proper condition;

2) sale of goods according to samples (Art. 497 of the Civil Code of the Russian Federation). The contract can be concluded on the basis of familiarization with the buyer or according to the catalog or description. The contract is considered executed at the time of delivery of the goods to the place indicated in the buyer's application, and if it is not indicated, then to the buyer's location;

3) sale of goods using machines (Article 498 of the Civil Code of the Russian Federation). The owner of the machine is obliged to inform the buyer about the seller, products and actions that must be performed to receive the goods by placing information on the machine or in another way. The contract is considered concluded from the moment the buyer takes the necessary actions;

4) sale of goods with delivery conditions (Art. 499 of the Civil Code of the Russian Federation). At the conclusion of the contract, the seller undertakes to deliver the goods to the specified location and transfer to the specified person. The contract is considered executed from the moment of its delivery to the buyer upon presentation of a receipt or other document on the conclusion of the contract.

Rights of the parties: the buyer has the right to exchange goods of proper and inadequate quality, and the seller has the right to exchange goods of inadequate quality.

Obligations of the parties: the seller is obliged to transfer the goods with documents, in a certain place, in the agreed quantity, assortment, completeness, established quality, and so on, and the buyer is obliged to pay for the goods. The seller is obliged to provide the buyer with the necessary and reliable information about the product offered for sale, in accordance with the statutory, other legal acts and the requirements usually imposed in retail trade for the content and methods of providing such information. Before concluding a retail sales contract, the buyer has the right to inspect the goods, demand that the properties be checked or the use of the goods is demonstrated in his presence, if this is not excluded due to the properties of the goods and does not contradict the rules adopted in retail trade.

Consumer protection in retail purchase and sale. According to the terms of the retail sale contract, the seller is obliged to transfer to the buyer the goods that fully correspond to its sample or description, and the quality of which corresponds to the information provided to the buyer at the conclusion of the contract.

If the purchased product is of inadequate quality, provided that it was not agreed by the seller, the buyer (consumer) in accordance with Art. 18 of the Law "On Protection of Consumer Rights" and Art. 503 of the Civil Code of the Russian Federation has the right, at its choice, to demand:

replacement of a poor-quality product with a product of proper quality;
a commensurate decrease in the purchase price;
immediate gratuitous elimination of defects in the goods;
reimbursement of expenses for the elimination of defects in the goods.

In the event that defects in a product are discovered, the properties of which do not allow them to be eliminated (food products, household chemicals, etc.), the buyer, at his choice, has the right to demand the replacement of such product with a product of proper quality or a commensurate reduction in the purchase price.

The preamble of the Law "On Protection of Consumer Rights" indicates signs of classifying deficiencies as significant: irreparable deficiencies or those that cannot be eliminated without disproportionate costs or time, or are identified repeatedly, or that appear again after elimination, or other similar deficiencies.

The signs specified in the legislation must be guided in each specific case when deciding whether to classify a deficiency identified in a product as essential. In the event of a dispute on this issue, an examination is carried out in the manner prescribed by the Law "On Protection of Consumer Rights" (clause 5 of article 18 of the Civil Code of the Russian Federation). If necessary, the dispute is resolved in court.

If, as a result of the examination of the goods, it is established that its deficiencies have arisen due to circumstances for which the seller (manufacturer) is not responsible, the buyer (consumer) is obliged to reimburse the seller (manufacturer), an authorized organization or an authorized individual entrepreneur, importer for the costs of the examination, as well as related with all the costs of storage and transportation of goods.

It should be borne in mind that delivery of bulky goods and goods weighing more than 5 kilograms for repair, markdown, replacement and (or) their return to the buyer (consumer) is carried out by forces and at the expense of the seller (manufacturer, authorized organization or authorized individual entrepreneur, importer).

The fact that the seller (consumer) does not have a cash or sales receipt or other document certifying the fact and conditions of the purchase of goods is not a reason for refusing to satisfy his requirements.

The consumer has the right to present statutory requirements to the seller or manufacturer in relation to defects in the goods if they are discovered during the warranty period or the shelf life established by the manufacturer (Article 19 of the Law "On Protection of Consumer Rights"). In relation to goods for which warranty or expiration dates have not been established, the consumer has the right to present the specified requirements if the defects of the goods are discovered within a reasonable time, but within two years from the date of their transfer to the consumer, unless longer periods are established by law or contract. For seasonal goods (footwear, clothing, etc.), these periods are calculated from the moment of the onset of the corresponding season, the onset of which is determined, respectively, by the constituent entities of the Russian Federation based on the climatic conditions of the location of consumers.

In accordance with Art. 20 of the Law "On Protection of Consumer Rights", defects found in a product must be eliminated by the manufacturer (seller, authorized organization or authorized individual entrepreneur, importer) immediately, unless another deadline for eliminating product defects is determined by agreement of the parties in writing.

With regard to durable goods, the buyer has the right to demand the provision of a similar product free of charge within three days for the period of repair. In Art. 21 of the Law "On Protection of Consumer Rights" defines the time frame for replacing goods of inadequate quality. So, as a general rule, if the consumer detects defects in the goods, the obligation is established to replace such goods within seven days from the date the consumer submits the corresponding demand; if an additional check of the quality of such goods by the seller is necessary - within 20 days from the date of such request. If the seller does not have the goods necessary for the replacement on the day the specified demand is presented, the replacement of such goods must be carried out within a month from the date of the specified demand.

Moreover, the product of inadequate quality must be replaced with a new product that was not used.

Other claims of the consumer (in particular, on a commensurate reduction in the purchase price of the goods, reimbursement of expenses for correcting defects in the goods by the consumer or a third party, the return of the amount paid for the goods, as well as compensation for losses caused to the consumer as a result of the sale of goods of inadequate quality) are subject to satisfaction within 10 days from the date of submission of the corresponding request (Article 22 of the Law "On Protection of Consumer Rights).

36. Supply agreement: concept, essential conditions, content. The contract for the supply of goods for state and municipal needs: the grounds and procedure for concluding, especially the content and execution.

Under the supply contract, the supplier-seller engaged in entrepreneurial activity undertakes to transfer, within a specified period or time, the goods produced or purchased by him to the buyer for use in entrepreneurial activity or for other purposes not related to personal, family, household and other similar use.

Characteristics of the contract: consensual, bilateral, onerous.

The subject is things that have not been removed from civil circulation.

The subjects of the transaction can be any subjects of civil legal relations.

The parties to the contract are a supplier-seller engaged in entrepreneurial activity and a buyer - any citizen.

The form of the contract is subject to general rules: oral, written, simple, or notarized.

Term: during the term of the contract, delivery in separate batches or in uniform batches on a monthly basis or according to a schedule (ten-day, daily, hourly, etc.).

Essential terms of the contract: term and subject (goods).

The quantity of goods is determined in units of measurement or in monetary terms. If the terms of the product are not agreed, the contract is considered not concluded.

The range of goods is agreed by the parties. If it is not set, then the assortment arises from the essence of the obligation, that is, the product must be in the assortment, taking into account the usual interests of the buyer.

The price of the goods is determined by the supply contract or can be determined based on its terms. The price can be set depending on the net weight or it can change depending on the indicators that determine the price of the goods (cost, costs, etc.).

The price is determined based on the ratio of these indicators at the time of the conclusion of the contract and at the time of transfer of the goods. The delivery agreement defines the order of delivery of the goods. The goods are shipped (transferred) to the buyer who is a party to the supply agreement, or to the person specified in the agreement as the recipient.

The supply agreement may provide for the buyer's right to give the supplier instructions on the shipment (transfer) of goods to the recipients specified in the shipping order. The content of the shipping order and the period for sending it by the buyer to the supplier are determined by the contract. If the term for sending such a shipping order is not specified by the contract, it must be sent to the supplier no later than thirty days before the delivery period. If the buyer does not submit the shipping order within the specified time period, the supplier has the right to either refuse to fulfill the supply contract, or demand payment from the buyer for the goods. In addition, the supplier has the right to demand compensation for losses incurred in connection with the failure to provide the shipping order.

At the conclusion of the contract, the seller undertakes to deliver the goods to the specified location and transfer to the specified person. The contract is considered concluded from the moment of its delivery to the buyer who presented a receipt or other document on the conclusion of the contract, unless otherwise follows from the contract or the essence of the obligation. If no time limit is specified, the goods must be transferred within a reasonable time from the moment the buyer submits the transfer request.

Seller rights:

1) transfer the goods to the buyer within the period established by the contract, in the absence of such a period within a reasonable period or seven days after the presentation of the requirements;

2) transfer of goods free of the rights of third parties, unless otherwise provided by the contract.

Buyer's responsibilities:

1) accept the goods if he does not have the right to demand replacement or refusal to perform the contract;

2) the buyer is obliged to pay for the goods at the price that is charged under comparable circumstances for similar goods.

The risk of accidental loss and accidental damage to the goods passes to the buyer from the moment when the seller fulfills his obligation to transfer the goods to the buyer. The risk of accidental loss and accidental damage to the goods sold while in transit passes to the buyer from the moment of the conclusion of the wholesale contract.

A contract for the supply for state needs is an agreement on the transfer of goods intended for state needs to a buyer, concluded by a supplier on the basis of and pursuant to a state contract.

The main distinguishing feature is the special purpose of using goods, namely, their purchase for state needs, including for the state reserve.

The supply contract for state needs is:

1) consensual;

2) compensated - the basis for the fulfillment of the obligation to transfer the goods is the receipt of reciprocal satisfaction in the form of the purchase price, and vice versa;

3) mutual - the existence of subjective rights and obligations for both parties to the supply contract for state needs.

Supplier - entrepreneur.

State customer - federal executive bodies approved by the Government of the Russian Federation, federal state-owned enterprises or state institutions.

Buyer - any legal entity.

Subject of the contract - any goods purchased for economic use, including for entrepreneurial activities. The purchase of foreign-made goods under government contracts is not allowed.

The form of the contract is written, it is concluded by signing one document by the parties.

An essential condition of the supply agreement for state needs is the time period.

Supplier's rights and obligations:

1) conclusion of a supply agreement for state needs;

2) for late delivery or shortage of goods under a government contract, pay the buyer a penalty in the amount of 50% of the value of the undelivered product and compensate for losses;

3) transfer of goods: a) by shipment of them to the buyer or by placing the goods at the disposal of the buyer at the location of the supplier;

b) together with accessories and documents related to the goods;

c) in a certain amount;

d) in the agreed range;

e) appropriate completeness and complete set, if any;

f) established quality;

g) free from the rights of third parties;

h) in containers and packaging.

Rights and obligations of the state customer:

1) is obliged to accept the goods; 2) is obliged to attach the buyer to the supplier; 3) is obliged to pay for the goods; 4) act as a surety for the buyer's obligation to pay for the goods.

Buyer's rights and obligations:

1) is obliged to accept the performance offered by the supplier; 2) has the right to refuse to conclude an agreement in whole or in part; 3) pay for the goods if the delivery is made under a separate delivery contract.

Under a retail sale and purchase agreement the seller, engaged in entrepreneurial activity in the sale of goods at retail, undertakes to transfer to the buyer the goods intended for personal, family, home or other use not related to entrepreneurial activity (Article 492 of the Civil Code).

Along with the general features inherent in buying and selling as a whole, retail buying and selling has a number of specific features:

subject composition of this agreement: always a seller - a commercial organization or a citizen-entrepreneur engaged in entrepreneurial activity in the sale of goods at retail; most often, the buyer is entering into a relationship to meet his personal household needs (the Law on Consumer Protection and other legal acts adopted in accordance with it apply).
publicity of this agreement (Article 426 of the Civil Code).
item(the seller undertakes to transfer to the buyer the goods intended for personal, family, home or other use not related to business).
pre-contractual obligations of the seller(according to Art. 495 of the Civil Code, they consist in providing the buyer with the necessary and reliable information about the goods offered for sale).
price is an essential condition.

Being public, a retail sale and purchase agreement can be concluded using a public one (Article 437 of the Civil Code). According to Art. 494 of the Civil Code, an offer by a seller in retail sale of goods in its advertising, catalogs and descriptions of goods addressed to an indefinite circle of persons is recognized as a public offer if it contains all the essential terms of a retail sale and purchase agreement. Moreover, displaying goods at the point of sale (on counters, in showcases, etc.), demonstrating their samples or providing information about the goods being sold (descriptions, catalogs, photographs of goods, etc.) is recognized as a public offer, regardless of whether whether the price and other material terms of the retail sales contract are specified, unless the seller has explicitly determined that the goods in question are not intended for sale.

An item is a product intended for personal, family, home or other use not related to business activities. In other words, the purposes for which the goods are purchased must be exclusively personal (household). In this regard, a citizen is not a consumer who purchases goods for organizations and at their expense in order to use these goods in production, as well as order services for organizations at their expense for the same purposes (for example, the purchase of a camera to work in a publishing house or edition, etc.). Consequently, as a general rule, the subject of retail sale and purchase are such goods that are acquired for interconnection in order to satisfy personal, family, household and other needs not related to the implementation of entrepreneurial activity, as well as in relations arising in connection with the acquisition by a citizen-entrepreneur goods, the performance of work for him or the provision of services not for personal, family, household and other needs, but for carrying out entrepreneurial activities or in connection with the purchase of goods, the performance of work and the provision of services in order to meet the needs of enterprises, institutions, organizations (see clause 1 Resolution of the Plenum of the RF Armed Forces of September 29, 1994 No. 7 "On the practice of court consideration of cases on the protection of consumer rights").

The form of this agreement differs depending on the circumstances under which it is concluded. In the event that the buyer accepts the terms of the forms or other standard forms proposed by the seller, it should be recognized that the contract is in writing. In addition to this, it should be noted that such an agreement acquires the features of an accession agreement (in Art. 493 of the Civil Code, a direct reference is made to Art. 428 of the Civil Code).

If the law or the retail sales contract does not establish special rules regarding the form, then the retail sales contract is considered concluded in the proper form from the moment the seller issues the cash or sales receipt or other document confirming payment for the goods to the buyer (Article 493 of the Civil Code). Consequently, as a general rule, such an agreement is concluded orally. The most common way of retail trade - through the counter - is the oral form of this agreement, since this is a typical transaction in which the moment of its execution and the moment of execution coincide (Article 159 of the Civil Code). If the moment of conclusion and execution of the retail sale and purchase agreement does not coincide, it should be considered that the cash or sales receipt or other document confirming payment for the goods and issued by the seller to the buyer is a written form of the contract (Article 161 of the Civil Code). But the buyer's absence of these documents does not deprive him of the opportunity to fall back on testimony in confirmation of the conclusion of the contract and its conditions when concluding this contract, both orally and in writing (paragraph 1 of paragraph 5 of article 18 of the Law on the Protection of Consumer Rights) ...

Pre-contractual obligations of the seller according to Art. 495 of the Civil Code are to provide the buyer with information about the product. The seller is obliged to provide the buyer with the necessary and reliable information about the goods offered for sale, in accordance with the requirements established by law, other legal acts and the requirements for the content and methods of providing such information usually presented in retail trade. The buyer has the right to inspect the goods even before the conclusion of the retail sales contract, to demand that the properties be checked or the demonstration of the use of the goods carried out in his presence, if this is not excluded due to the nature of the goods and does not contradict the rules adopted in retail trade. In cases where the buyer is a consumer, he is also subject to Art. 8-12 of the Law on the Protection of Consumer Rights.

In terms of content, i.e. essential conditions, the buyer in accordance with paragraph 1 of Art. 500 GK is obliged to pay for the goods at the price announced by the seller at the time of the conclusion of the retail sale contract, unless otherwise provided by law, other legal acts or follows from the essence of the obligation. Consequently, along with the subject matter, the price is an essential condition of the retail sales contract.

Protection of consumer citizens

Taking into account the noted features of the retail sale and purchase agreement, the law establishes a number of additional protection of the rights of buyers.

Protection of the rights of buyers established by the Civil Code of the Russian Federation

In accordance with article 502 of the Civil Code of the Russian Federation, p the payer has the right, within 14 days from the date of transfer of the non-food product to him, unless a longer period is announced by the seller, to exchange the purchased product at the place of purchase and other places announced by the seller for a similar product of a different size, shape, dimension, style, color or configuration, making the necessary recalculation with the seller in the event of a price difference.

If the seller does not have the goods necessary for exchange, the buyer has the right to return the purchased goods to the seller and receive the money paid for it.

The buyer's demand for an exchange or for the return of the goods is subject to satisfaction if the goods were not in use, their consumer properties were preserved and there is evidence of its purchase from this seller.

In addition, the manufacturer is liable for harm caused to the life, health or property of the consumer in connection with the use of materials, equipment, tools and other means necessary for the production of goods, regardless of whether the level of scientific and technical knowledge allowed to identify their special properties or not. ...

Retail sale contract consumer protection

The Civil Code does not determine the timing of the replacement of goods by the seller. Therefore, organizations or individual entrepreneurs should be guided by the rules of Article 314 of the Civil Code, and the citizen-consumer - by the terms established by Article 2 of the Law on the Protection of Consumer Rights. According to the general rule of Article 2, the replacement of goods is made within seven days from the date of the request. The law establishes several exceptions to this rule.

Retail Sales Agreement

Firstly, on the side of the seller is always a person who carries out business activities in the sale of goods at retail. Entrepreneurial activity is understood as an independent activity carried out at one's own risk aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (clause 1 of article 2 of the Civil Code). The buyer under this agreement can be any subject of civil law, but most often they are citizens.

Retail sale contract consumer protection

The subject of a retail sale and purchase agreement can be any things that are not withdrawn from circulation and used only for a household consumer: personal, family, home. They can be both individually defined and determined by generic characteristics, both existing at the time of the conclusion of the contract, and being at that moment in the production process. Goods, in the standards for which safety requirements are established, are subject to mandatory certification. Goods that are harmful to health cannot be sold (such goods must be withdrawn from sale, and their production must be stopped).

At the same time, in accordance with clause 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17 "On the consideration of civil cases by courts in disputes on the protection of consumer rights", when resolving consumer claims, it is necessary to take into account that the burden of the fulfillment of the obligation, including for causing harm, lies with the seller (manufacturer, performer, authorized organization or authorized individual entrepreneur, importer). The exception is cases of sale of goods (performance of work, provision of services) of inadequate quality, when the distribution of the burden of proof depends on whether the warranty period was set on the product (work, service), as well as on the time when defects were discovered.

According to Art. 454 and 492 of the Civil Code, the main obligation of the seller is to transfer to the buyer the ownership of the thing (goods). The law makes uniform requirements for the transferred item in terms of its quality and completeness, and if items determined by generic characteristics are subject to transfer, also the quantity and assortment. At the same time, taking into account the peculiarities of the retail sale and purchase agreement, the Civil Code and the Law on the Protection of Consumer Rights establish a number of additional guarantees for the protection of buyers' rights.

Features of consumer protection in a retail sale contract

Having studied the judicial practice, we can conclude that most of the lawsuits for the protection of consumer rights of the retail purchase agreement are in the areas of trade, public catering, consumer services, public transport, telecommunications services, construction and medicine. It is these areas that have priority.

Protection of consumer rights under a retail sale and purchase agreement

The oral form is used, as a rule, when the conclusion and execution of the contract occurs simultaneously. The written form is not always expressed in the form of a document called "Agreement". The law allows you to conclude an agreement by exchanging letters, telegrams, faxes and other means, including through electronic commerce, via the Internet. The main thing is that the use of these methods makes it possible to establish exactly what responsibilities the parties have assumed.

Consumer protection in retail sales contracts

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Regulations on the Department of the State Trade Inspection of the Ministry of Economic Development of Russia: Approved. By order of the Ministry of Economic Development of the Russian Federation of July 17, 2009 No. 222. The text of the order was not officially published // SPS "Garant".
Regulations on the procedure for considering the MAP of Russia and its territorial departments of cases on violations of laws and other legal acts of the Russian Federation regulating relations in the field of consumer protection: Approved. Order of the Ministry of Aviation Industry of the Russian Federation dated April 4, 2008 No. 42 (as amended on March 11, 2009, July 2, 2002) // Russian News. - 2008 .-- May 30. - No. 99.
Regulations on the Federal Service for Supervision of Consumer Rights Protection and Human Welfare: Approved. Decree of the Government of the Russian Federation of June 30, 2008 No. 322 // Collected Legislation of the Russian Federation. - 2008 .-- July 12. - No. 28. - Art. 2899.

Civil law

According to clauses 2 and 3 of Art. 16 of the Law under consideration, it is prohibited to condition the acquisition of certain goods (works, services) on the compulsory purchase of other goods (works, services). This refers to the imposition of the consumer goods "in a set", "order" or services "in a complex". The seller does not have the right to impose on the consumer the purchase of a product that is not a single assortment unit - a "set" in accordance with clause 1 of Art. 479 GK (a set of dishes or furniture).

Consequences of violation of the retail sale and purchase agreement

A claim for reimbursement of repair costs is made when the buyer fixes them himself (for example, buys a new part and replaces the defective part with it) or entrusts the repair to a third party. The amount of reimbursable expenses must be commensurate with the work required to eliminate the deficiencies and the price of the goods. Expenses in excess of the price of the goods shall not be reimbursed.

Retail sale and purchase agreement and protection of the rights of citizens-consumers

Under a retail sale contract, a seller engaged in entrepreneurial activity in the sale of goods at retail undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to entrepreneurial activity.

The practice of resolving disputes related to the retail sale and purchase agreement

* based on the price at the time of the court's decision. The latter approach seems to be the most correct, since the penalty established by the law is intended, first of all, to punish the seller (or manufacturer) who violates the rights of consumers, and to prevent such violations in the future. Based on the purchase price, the amount is so negligible that it does not meet the purpose of the penalty. If we proceed from the price in effect at the time of filing the application, then the costs of the judicial system, in particular, the lengthy consideration of the case, fall on the consumer.

Peculiarities of the retail sale and purchase agreement

purchase agreement right consumer

In the field of retail trade, the general norms of the Civil Code of the Russian Federation and the Law "On Protection of Consumer Rights" apply.

The law defines a consumer as a citizen who intends to purchase a product for personal (household) needs, not related to making a profit. In accordance with Art. 2 of the Civil Code of the Russian Federation, consumers are considered not only citizens of Russia, but also foreign citizens and stateless persons. RF Law of February 7, 1992 N 2300-I "On Protection of Consumer Rights" // Rossiyskaya Gazeta "of April 7, 1992.

Federal Law of the Russian Federation of December 17, 1999 N 212-FZ "On Amendments and Additions to the Law of the Russian Federation" On Protection of Consumer Rights "the concept of" consumer "is brought in line with the text of Art. 492 of the Civil Code of the Russian Federation, which defines a retail purchase agreement. sales.

The changes affected the wording of the purposes of using the purchased goods under a retail sale and purchase agreement: the goods must be purchased and used exclusively for personal or family, household and other needs not related to entrepreneurial activities. The latter circumstance is of decisive importance for determining the scope of application of consumer protection legislation in the implementation of trade services.

The previous version of the concept of "consumer", which provided for the absence of profit from the use of goods as a defining criterion, unreasonably excluded from the scope of the Law a number of goods (works and services) that brought the consumer profit (income), although they were acquired and used exclusively for personal needs, for example the purchase of agricultural machinery for cultivating a vegetable garden, as a result of which income was generated, etc. Obviously, such actions cannot be considered entrepreneurial activity, i.e. activities aimed at systematic profit. As E. Bukach points out, unlike the goals of the consumer, the sole purpose of the entrepreneur is to make a profit. Bukach E. Return of low-quality goods // Economy and life. - Issue 46, November 2005 .-- P. 32.

The number of goods to be transferred to the buyer must be determined in the contract in the appropriate units of measurement or in monetary terms.

It is allowed for the parties to agree in the contract only on the procedure for determining the quantity of goods (clause 1 of article 465 of the Civil Code of the Russian Federation). This circumstance is of great importance, since the number of goods belongs to the essential conditions of the retail sale contract, the absence of which entails the recognition of the contract as not concluded.

Failure by the seller to fulfill its obligation to transfer the goods in the specified quantity to the buyer may be considered in certain circumstances (for example, if a significant amount of goods has not been transferred) as a material breach of the contractual obligation. In this case, the buyer gets the right to refuse to fulfill the obligations.

The retail sale contract may stipulate that goods in a certain assortment are subject to transfer - the ratio by types, models, sizes, colors and other characteristics. In this case, the seller must fulfill the buyer's conditions (Article 467 of the Civil Code of the Russian Federation). Yakovlev, V.F. Russia: Economy, civil law: (Questions of theory and practice) / V.F. Yakovlev. - M .: RITs ISPI RAN, 2005 .-- 180 p.

The transfer by the seller of the goods provided for by the contract in violation of the assortment condition gives the buyer the right to refuse to accept and pay for them, and if they have already been paid, to demand the return of the amount paid and compensation for losses.

Courts often face difficulties in defining the subjects of relations in the field of consumer protection.

So, making a decision to refuse A-wu in satisfying claims for the return of money paid for a commission cell phone, the magistrate of the site No. 1 of Khabarovsk proceeded from the fact that A-v was not a proper plaintiff in the case, since the warranty card was issued not by the plaintiff, but by his brother.

At the same time, the magistrate did not take into account the provisions of the preamble of the Law of the Russian Federation "On Protection of Consumer Rights", from the content of which it follows that a consumer is understood not only a citizen who directly purchased a product or ordered a work (service), but also a citizen who uses them.

The plaintiff indicated in the statement of claim and argued at the hearing that the cell phone had been bought by the brother for him and with his money. Interrogated at the hearing as a witness A-in confirmed the circumstances indicated by the plaintiff.

In addition, refusing to satisfy the claims, the magistrate also referred to the fact that the plaintiff had not presented evidence that the phone had a defect upon sale, which manifested itself after the purchase.

Meanwhile, as follows from the statement of claim, the plaintiff discovered defects in the goods and turned to the defendant to repair the cell phone within the warranty period, which was established by the defendant. In such circumstances, in accordance with par. 2 p. 6 art. 18 of the Law of the Russian Federation "On Protection of Consumer Rights", the seller's responsibility for the sale of goods of inadequate quality is assumed, due to which the plaintiff is not obliged to prove the fact of the sale of goods of inadequate quality to him, namely, the defendant must prove that the defects of the goods arose through the fault of the consumer. There is no such evidence in the case file.

Having considered it established that it was the commission phone that was sold to the plaintiff, the court did not establish whether the phone being sold had defects, whether the seller had agreed upon the shortcomings in its sale, and which ones. This circumstance is of significant importance, since Article 18 of the Law "On Protection of Consumer Rights" establishes the consequences of the sale of goods of inadequate quality, if it was not agreed by the seller.

Thus, the court, in violation of the requirements of Art. 56 Code of Civil Procedure of the Russian Federation, para. 2 p. 6 art. 18 of the Law of the Russian Federation "On Protection of Consumer Rights", incorrectly distributed the burden of proving the circumstances relevant to the case, and by imposing the obligation on the plaintiff to prove the fact of the sale of the phone of inadequate quality, violated the norms of substantive and procedural law. Resolution N 44-g-2123 of 11/16/2007 / Archives of the Khabarovsk District Court.

In a marketplace, consumers desperately need clear and accessible information to enable them to make the right choice. The consumer must be provided with the necessary and reliable information in Russian. It should contain information about the manufacturer (executor) of the product (work, service), the seller, as well as about the product (work, service) itself. Information is understood as information, messages available for perception and necessary for the consumer to exercise and protect their rights.

The reliability of information is understood as the compliance of the information contained in it about the goods (works, services), about the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer).

The list and methods of communicating information to the consumer in a number of cases are determined by the Rules for the sale of certain types of goods, the Rules for household and other types of consumer services, the Rules for the performance of certain types of work and the provision of certain types of services, approved by the Government of the Russian Federation on the basis of Art. 26, 38 of the Law on the Protection of Consumer Rights.

Failure to comply with the requirements of the Law on providing the consumer with the necessary and reliable information is the basis for satisfying his requirements for the protection of violated rights, in particular by refusing the goods, with compensation for its value and losses incurred.

So, in one of the cases, the court satisfied the consumer's claims against an individual entrepreneur, due to the fact that he was not provided with complete and reliable information about the product. The court found that the consumer was misled about the medicinal properties of the Coral electric vibrating machine purchased from the defendant. The user manual has not been issued to the consumer. When concluding the contract, the seller did not inform the consumer about the need to consult a doctor before buying this product, about the existing contraindications for its use, but said that the product has a high therapeutic effect and cures many diseases.

The retail sales contract must provide for the requirements for the quality of the goods. The seller is obliged to transfer to the buyer the goods, the quality of which corresponds to the contract.

If the buyer, when concluding the contract, informed the seller about the specific purposes of purchasing the goods, the seller is obliged to transfer to the buyer the goods suitable for use in accordance with these purposes.

Mandatory requirements for the quality of goods are determined by the state standards of the Russian Federation (GOST). These include requirements aimed at ensuring safety, life, health and property, environmental protection, technical and information compatibility, the interchangeability of goods, the unity of methods for their control and labeling. Other requirements for the quality of goods contained in GOSTs are advisory in nature.

If the seller provides the buyer with a contractual guarantee, the guarantee period shall start from the moment the goods are handed over to the buyer. However, the contract may provide for a different initial moment of the warranty period.

The warranty period is interrupted in cases where the goods cannot be used by the buyer due to circumstances depending on the seller, for example, due to defects in the goods, due to non-delivery of the accessories to the buyer, including operating instructions and other necessary documentation. The warranty period can only be renewed after the seller has eliminated the relevant circumstances.

If, during the warranty period, the buyer discovers defects in the transferred product (component product) and the seller, at the buyer's request, replaces it with a newly transferred product (component product), the warranty period is set for the same duration as for the replaced one. This rule will apply unless otherwise provided in the sales contract.

The seller's responsibility for the improper quality of the goods largely depends on whether there is a contractual guarantee of the quality of the goods. If there is a legal guarantee, the seller is liable for defects in the goods if the buyer proves that they arose before the transfer to the buyer of the risk of accidental loss or accidental damage to the goods or for reasons that arose before that moment. But the seller is not responsible if the defects arose after the transfer of the goods to the buyer due to the buyer's violation of the rules for using the goods or their storage, or the actions of third parties or force majeure (Article 476 of the Civil Code of the Russian Federation).

If the seller violates the terms of the contract on the quality of the goods, the buyer may demand:

A commensurate decrease in the purchase price;

Gratuitous elimination of defects in the goods within a reasonable time;

Reimbursement of their expenses for the elimination of defects in the goods (clause 1 of article 475 of the Civil Code of the Russian Federation);

Refusal to execute the contract of sale and return of the amount of money paid for the goods;

Replacement of goods of inadequate quality with goods corresponding to the contract (clause 2 of article 475 of the Civil Code of the Russian Federation).

But the obligation of the buyer to check the quality of the goods transferred to him may be provided for by law, other legal acts, mandatory requirements of state standards, or a sale and purchase agreement. The obligation to check the quality of the goods sold (preliminary testing, analysis, etc.) may be imposed on the seller (Article 474 of the Civil Code of the Russian Federation).

The buyer has the right to present his claims to the seller in connection with the defects of the goods, discovered only within the time limits determined by article 477 of the Civil Code of the Russian Federation.

If there is only a legal guarantee for the product (that is, when there is no warranty period or shelf life for it), defects in the product must be discovered by the buyer within a reasonable time (depending on the properties of the product and its normal use), but within two years from the date transfer of the goods to the buyer. However, the law or contract may provide for a longer time limit for detecting defects in the product.

If there is a contractual guarantee, defects in the product must be discovered by the buyer within the warranty period.

Under a retail sale agreement, the seller must transfer to the buyer the goods that meet the terms of the completeness agreement (Article 478 of the Civil Code of the Russian Federation) - a certain set of goods in a set (set of goods). In this case, the obligation can be considered fulfilled from the moment of transfer to the buyer of all the goods included in the set.

If the seller violates these terms of the contract, the buyer has the right to demand from the seller a commensurate reduction of the purchase price or the completion of the goods within a reasonable time. If the seller has not completed the goods within a reasonable time, the buyer may demand that the incomplete goods be replaced with a complete one or refuse to fulfill the contract and demand the return of the amount paid (Article 480 of the Civil Code of the Russian Federation).

In the review of the judicial practice of the Supreme Court of the Russian Federation for the 3rd quarter of 2005, an example was published on the application of Art. 18 of the Law of the Russian Federation "On Protection of Consumer Rights", according to which the buyer has the right to refuse to execute the contract for the retail sale of goods and demand the return of the money paid for it only in the event of a significant violation of the requirements for the quality of the goods.

Resolving the dispute and refusing to satisfy the claims of the plaintiff, who acquired a foreign-made vehicle in a trade organization (from the defendant in the case), to terminate the sale and purchase agreement, return the amount paid for the goods, recover a penalty and reimbursement of damages, the court reasonably came to the following conclusion.

The plaintiff's claims to the trade organization for the return of the goods of inadequate quality and the amount paid for it, compensation for losses caused by the termination of the retail sale and purchase agreement, the defendant refused, referring to paragraph 1 of Article 18 of the Law of the Russian Federation "On Protection of Consumer Rights", which provides that the claims for the return of a technically complex product of inadequate quality and the amount paid for it can be satisfied only if a significant deficiency of the product is discovered.

In accordance with paragraph 2 of Article 475 of the Civil Code of the Russian Federation, in the event of a significant violation of the requirements for the quality of the goods (detection of unrecoverable deficiencies, deficiencies that cannot be eliminated without disproportionate costs or expenditures of time, or are revealed repeatedly or appear again after their elimination, and other similar shortcomings), the buyer has the right, at his choice: to refuse to fulfill the contract of sale and demand the return of the money paid for the goods; demand the replacement of goods of inadequate quality with goods that comply with the contract.

Thus, based on the above legal norm, the buyer has the right to refuse to fulfill the contract for the retail sale of the vehicle and demand the return of the amount paid for it only in the event of a significant violation of the requirements for the quality of the vehicle. Gorina I.E. Consumer Rights Protection: Frequently Asked Questions, Sample Documents: My Own Lawyer N 4. - M., Yurayt-Izdat, 2006. - 57 p.

Meanwhile, the court in this case established that such a malfunction, such as a leak in the clutch cylinder of a vehicle belonging to the plaintiff, is not an obstacle to the normal operation of this vehicle and does not refer to significant defects in the goods. The applicant's arguments that the materiality of the identified deficiency in the product is only relevant when claims are made to replace an expensive or technically complex product, in connection with which the demand to terminate the sales contract for a technically complex product can be submitted without restrictions related to the materiality identified in product defects, based on an incorrect interpretation of substantive law. Determination of the Supreme Court of the Russian Federation of October 5, 2005 N 5-B05-144 // (http://www.supcourt.ru).

The new edition of the article provides that in relation to a technically complex product, the consumer, in the event of deficiencies (even insignificant), is found in it, has the right to refuse to execute the sales contract and demand the return of the amount paid for such a product. The buyer can also replace the "marriage" with a product of the same brand (model, article number) or for the same product of another brand (model, article number) with a corresponding recalculation of the purchase price. For these actions, he is given fifteen days from the day he received the goods with a deficiency.

If the consumer is late, then these requirements are subject to satisfaction in the following cases:

Detection of a significant shortage of goods;

Violations of the deadlines for eliminating defects in goods established by Law No. 2300-1;

The impossibility of using the product during each year of the warranty period in the aggregate of more than thirty days due to the repeated elimination of its various defects.

In conclusion, we note that, as shown by statistics in the field of consumer protection in the Far East in 2007, the share of violations in the retail trade increased (10.7% versus 6.8% in 2006).

By the types of mandatory requirements for business entities carrying out activities in the field of consumer protection, the structure of the identified violations is as follows:

Violation of consumer rights to information - 32.2% (832);

Violations of the rules for the sale of certain types of goods -38.8% (1001);

Violations of requirements for the quality of goods, works, services - 12.7% (338);

Violations of requirements for the safety of goods, works, services - 2.1% (54);

Thus, violations in the sphere of the consumer market are growing and the load on the territorial bodies of Rosspotrebsoyuz is growing.

Improvement of legislation in the field of consumer protection in the field of retail trade has matured in connection with the need to introduce in each region a systematic approach to solving consumer problems, to the solution of which all levels of government should be involved today: federal regulatory and law enforcement agencies, executive authorities of the constituent entities of the Russian Federation, local government bodies, public associations of consumers and entrepreneurs.