Mistress 

The rights of the buyer under the contract of retail sale. Rights and obligations of the parties under a retail purchase agreement. Types of sales contracts

The buyer has the right to exchange the goods purchased by him ( Art. 502 Civil Code of the Russian Federation ; Art. 25 of the Consumer Protection Act).

The implementation of this right is associated with the need to comply with a number of conditions and requirements in relation to both the exchanged goods and the buyer (consumer). Thus, the product must be: a) non-food (the right to exchange does not apply to food products); b) quality (Article 503 of the Civil Code of the Russian Federation). The reason for the exchange should be various reasons not related to the quality of the goods (size, shape, dimensions, style, color, equipment) that do not satisfy the buyer. The product must retain its consumer properties and must not be included in the list of goods not subject to exchange (return).

In turn, the buyer can exercise this right: at the place of purchase of the goods; within 14 days from the date of its transfer (or in other places and (or) in a longer period declared by the seller), if, firstly, he did not use (did not use) the goods and, secondly, he has evidence of his purchase from this seller.

Article 25 of the Federal Law "On Protection of Consumer Rights" specifies the rules for the return of goods, fixing the following.

The exchange of a non-food product of good quality is carried out if the specified product was not in use, its presentation, consumer properties, seals, factory labels are preserved, and there is also a sales receipt or cash receipt or other document confirming payment for the specified product. At the same time, the consumer’s lack of a sales or cash receipt or other document confirming payment for the goods does not deprive him of the opportunity to refer to witness testimony (clause 1, article 25 of the Federal Law “On Protection of Consumer Rights”).

If a similar product is not available for sale on the day the consumer applies to the seller, then the consumer has the right to refuse to fulfill the contract of sale and demand the return of the amount of money paid for the specified product. The consumer's demand for the return of the amount of money paid for the specified product is subject to satisfaction within three days from the date of return of the specified product (clause 2, article 25 of the Federal Law "On Protection of Consumer Rights").



However, not all goods of good quality are subject to exchange according to the rules of Art. 502 of the Civil Code of the Russian Federation. The Government of the Russian Federation approved the List of goods not subject to exchange. According to the Decree of the Government of the Russian Federation of January 19, 1998 No. 55, as amended. dated October 4, 2012 "On approval of the Rules for the sale of certain types of goods, the list of durable goods that are not subject to the buyer's requirement to provide him free of charge for the period of repair or replacement of a similar product, and the list of non-food products of good quality that are not subject to return or exchange for a similar product of a different size, shape, size, style, color or configuration” are not subject to exchange according to the rules of Art. 502 of the Civil Code of the Russian Federation the following goods: sanitary and hygiene items made of metal, rubber, textiles and other materials, medical instruments, devices and equipment, oral hygiene products, spectacle lenses, childcare items, medicines; personal hygiene items (toothbrushes, combs, hair clips, hair curlers, wigs, hairpieces and other similar products; perfumery and cosmetic products; textile products (cotton, linen, silk, woolen and synthetic fabrics, goods made of non-woven materials such as fabrics - ribbons , braid, lace and others); cable products (wires, cords, cables); building and finishing materials (linoleum, film, carpeting and others) and other goods sold by the meter; sewing and knitted products (sewing and knitted underwear, hosiery, etc.), etc.

The buyer has the right to protect his rights in case of purchase goods of inadequate quality.

In the event of the sale of goods of inadequate quality, the buyer has the right to demand:

- replacement of low-quality goods with goods of good quality;

– a commensurate reduction in the purchase price;

– immediate gratuitous elimination of product defects;

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

Along with the above, the law establishes a general rule according to which, instead of presenting the requirements listed above, the buyer has the right to refuse to fulfill the contract of retail sale and demand the return of the amount paid for the goods (clause 4 of article 503 of the Civil Code of the Russian Federation).

In relation to a technically complex product, the buyer has the right to demand its replacement or refuse to fulfill the retail sale contract and demand a refund of the amount paid for the product in the event of a significant violation of the requirements for its quality.

According to paragraph 6 of Art. 503 of the Civil Code of the Russian Federation these rules, unless otherwise provided by consumer protection laws.

In turn, the Consumer Rights Protection Law supplements the rules of the Civil Code of the Russian Federation. The rights of the consumer when defects are found in the product are enshrined in Art. 18 of the Consumer Protection Act. Let's dwell on them in more detail.

In accordance with paragraph 1 of Art. 18 of the Law on the Protection of Consumer Rights, the consumer, in the event of a defect in the product, the consumer (retail buyer), at his choice, has the right to:

demand a replacement for a product of the same brand (the same model and (or) article);

demand a replacement for the same product of a different brand (model, article) with a corresponding recalculation of the purchase price;

demand a commensurate reduction in the purchase price;

demand immediate gratuitous elimination of product defects or reimbursement of expenses for their correction by the consumer or a third party;

refuse to fulfill the contract of sale and demand the return of the amount paid for the goods.

At the request of the seller and at his expense, the consumer must return the goods with defects. In this case, the consumer has the right to demand also full compensation for losses caused to him as a result of the sale of goods of inadequate quality. Losses are reimbursed within the time limits established by the above Law to meet the relevant requirements of the consumer.

A number of special rules are set for technically complex products.

In relation to a technically complex product, the consumer, in case of detection of shortcomings in it, has the right to refuse to fulfill the contract of sale and demand a refund of the amount paid for such a product or demand its replacement with a product of the same brand (model, article) or with the same product of another brand (model, article) with a corresponding recalculation of the purchase price within fifteen days from the date of transfer of such goods to the consumer. After this period, these requirements are subject to satisfaction in one of the following cases:

discovery of a significant defect of the goods;

violation of the deadlines established by this Law for the elimination of defects in goods;

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

The list of technically complex goods was approved by the Government of the Russian Federation on November 10, 2011 No. 924. Technical products include: passenger cars, motorcycles, motor scooters and vehicles with an internal combustion engine (with an electric motor) intended for movement on public roads; tractors, motoblocks, motor cultivators, machinery and equipment for agriculture with an internal combustion engine (with an electric motor); system blocks, stationary and portable computers, including laptops, and personal electronic computers; TVs, projectors with a digital control unit; digital photo and video cameras, lenses for them and optical photo and film equipment with a digital control unit; refrigerators, freezers, washing machines and dishwashers, coffee machines, electric and combined stoves, electric and combined ovens, air conditioners, electric water heaters with an electric motor and (or) microprocessor automation, etc.

It should be noted that the Law on the Protection of Consumer Rights expressly enshrines the rule that the absence of a cash or sales receipt or other document certifying the fact and conditions of the purchase of goods by the consumer is not a basis for refusing to satisfy his requirements (clause 5 Article 18 of the Federal Law “On Protection of Consumer Rights”).

Supply contract

49. The rights of the buyer under the contract of retail sale.

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

Buyer's rights:

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

2. Demand an inspection of the properties or a demonstration of the use of the goods in his presence, before concluding a retail sale contract, 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 product at the place of purchase and other places declared by the seller for a similar product of a different size, shape, dimensions, style, color or configuration within fourteen days from the date of transfer of the non-food product to it (Article 502 of the Civil Code and Article 25 of the Law “Consumer Protection”). If the seller does not have the goods necessary for the exchange, the buyer has the right to return the purchased goods to the seller and receive the amount of money paid for it. This right applies to all non-food products, with the exception of the list of goods specified in Decree of the Government of the Russian Federation of January 19, 1998 N 55.

4. To demand compensation for the difference between the price of the goods established by the retail sale and purchase agreement and the price of the corresponding goods at the time of satisfaction of his demand, when returning the goods of inadequate quality to the seller (Article 504 of the Civil Code).

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

Article 503

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

replacement of low-quality goods with goods of good quality;

proportional reduction of the purchase price;

immediate gratuitous elimination of defects in the goods;

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

2. In case of detection of defects in the goods, the properties of which do not allow to eliminate them (food products, household chemicals, etc.), the buyer, at his choice, has the right to demand the replacement of such goods with goods of appropriate quality or a proportional 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 contract of retail purchase and sale and demand the return of the amount paid for the product in the event of a significant violation of the requirements for its quality (Item 2 of Article 475).

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According to Art. 492 of the Civil Code of the Russian Federation, consumer protection laws and other legal acts adopted in accordance with them apply to relations under a retail sale and purchase agreement with the participation of a citizen buyer not regulated by this Code. Accordingly, the protection of consumer rights in retail sales has features in contrast to other sales contracts.

Protection of consumer rights when exchanging goods of good quality.

In accordance with Art. 502 of the Civil Code of the Russian Federation, the buyer has the right, within fourteen days from the date of transfer of the non-food product to him, if a longer period is not declared by the seller, to exchange the purchased goods at the place of purchase and other places declared 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 difference in price. If the seller does not have the goods necessary for the exchange, the buyer has the right to return the purchased goods to the seller and receive the amount of money paid for it.

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

Protection of consumer rights when selling goods of inadequate quality.

In accordance with Art. 503 of the Civil Code of the Russian Federation, the buyer, to whom goods of inadequate quality are sold, if its shortcomings were not specified by the seller, at his choice, has the right to demand:

replacement of low-quality goods with goods of good quality;

proportional reduction of the purchase price;

immediate gratuitous elimination of defects in the goods;

reimbursement of expenses for the elimination of defects in the goods (clause 1).

2. In case of detection of defects in the goods, the properties of which do not allow to eliminate them (food products, household chemicals, etc.), the buyer, at his choice, has the right to demand the replacement of such goods with goods of appropriate quality or a proportional 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 contract of retail purchase and sale and demand the return of the amount paid for the product in the event of a significant violation of the requirements for its quality (Item 2 of Article 475).

4. Instead of presenting the requirements specified in paragraphs 1 and 2 of this article, the buyer has the right to refuse to fulfill the contract of retail sale and demand the return of the amount paid for the goods.

5. In case of refusal to fulfill the contract of retail purchase and sale with the requirement to return the amount paid for the goods, the buyer, at the request of the seller and at his expense, must return the received goods of inadequate quality.

When returning to the buyer the amount paid for the goods, the seller is not entitled to withhold from it the amount by which the cost of the goods has decreased due to the full or partial use of the goods, the loss of their presentation or similar circumstances.

Judicial protection of consumer rights in retail sales.

Consumer protection cases are considered by courts of general jurisdiction and there is no mandatory claim procedure for resolving disputes in the retail sale of goods.

At the same time, according to paragraph 28 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17 “On consideration by courts of civil cases on disputes on the protection of consumer rights”, when resolving consumer claims, it is necessary to take into account that the burden of proof of circumstances exempting from liability for non-fulfillment or improper 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 a warranty period was established for the goods (work, service), as well as on the time when defects were discovered.

Protection of consumer rights in the retail sale and purchase allows compensation to the consumer for losses in full. In this case, losses are compensated in excess of the penalty (penalty) established by law or contract.

When the court decides on the issue of compensation to the consumer for non-pecuniary damage, a sufficient condition for satisfying the claim is the established fact of violation of the consumer's rights. The amount of compensation for moral damage is determined by the court, regardless of the amount of compensation for property damage. The amount of compensation for moral damage awarded to the consumer in each specific case is determined by the court, taking into account the nature of the moral and physical suffering caused to the consumer, based on the principle of reasonableness and justice.

If the court satisfies the requirements of the consumer in connection with the violation of his rights established by the Law on the Protection of Consumer Rights, which were not satisfied voluntarily by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer), the court collects a fine from the defendant in favor of the consumer regardless of whether such a request was made to the court.

5. Contract for the supply of goods: concept, subjects, content.

Under the supply contract, the supplier-seller engaged in entrepreneurial activity undertakes to transfer, within the stipulated time (terms), the goods produced or purchased by him to the buyer for use in entrepreneurial activity or for other purposes not related to personal, family, home and other similar use.

This definition allows us to conclude that the supply agreement is consensual (the agreement is considered concluded when the parties come to an agreement on all the essential terms of the agreement), paid (which determines the monetary nature of the agreement), bilaterally binding agreement (the rights and obligations of one party are opposed by the corresponding rights and obligations of the other party).

The parties to the supply agreement are: the supplier (seller) and the buyer. Only persons engaged in entrepreneurial activity can act as a supplier. They can be both commercial and non-profit organizations, as well as citizens - individual entrepreneurs.

On the side of the buyer, mainly citizens engaged in entrepreneurial activities and legal entities act. Among the latter can be both commercial and non-commercial organizations. At the same time, buyers do not necessarily have to engage in entrepreneurial activities. The condition of their participation in the relationship for the supply of goods is the purpose of its acquisition.

Features of the delivery dog:

1) the parties to the contract (supplier and buyer) are persons engaged in entrepreneurial activities,

2) the subject of the agreement are goods for use in business activities or for other purposes not related to personal, family, household or other similar use,

3) a special procedure for concluding a contract in terms of settling disputes arising from the conclusion of a contract,

4) the essential conditions of the contract are the conditions on the subject and terms of delivery.

The essential terms of the contract include its subject matter and delivery time.

The subject of the supply contract is considered established if its content allows determining the name and quantity of the goods (clause 3, article 455 of the Civil Code of the Russian Federation).

The goods produced or purchased by the supplier are subject to delivery.

The subject of delivery cannot be real estate objects, in relation to the sale of which special rules are provided - § 7 Ch. 30 of the Civil Code of the Russian Federation.

Delivery term, i.e. the term for the supplier to fulfill the obligation to transfer the goods to the buyer. The delivery time is determined within the general term of the contract, it can be determined by a calendar date or a period of time, for example, delivery within navigation, within 10 days from the date of payment for the goods, etc.

Often, the contract involves not a one-time transfer of goods, but a regular supply of goods in batches. At the same time, the total quantity of goods is divided into certain parts and counterparties agree on the delivery time of individual lots (delivery periods). So, there may be quarterly, monthly, ten-day and other delivery periods. If the contract provides for delivery in separate batches, but the delivery periods are not defined, then the goods must be delivered in uniform batches on a monthly basis, provided that otherwise does not follow from the law, other legal acts, the essence of the obligation or business customs (and. 1 article 508 of the Civil Code of the Russian Federation ).

Along with the definition of delivery periods, the delivery contract may establish a schedule for the delivery of goods (ten-day, daily, hourly, etc.).

According to Art. 492 of the Civil Code of the Russian Federation relations under a retail sale and purchase agreement with the participation of a citizen buyer not regulated by this Code are subject to consumer protection laws and other legal acts adopted in accordance with them. Accordingly, the protection of consumer rights in retail sales has features in contrast to other sales contracts.

Protection of consumer rights when exchanging goods of good quality.

In accordance with Art. 502 of the Civil Code of the Russian Federation the buyer has the right, within fourteen days from the date of transfer of the non-food product to him, if a longer period is not announced by the seller, to exchange the purchased product at the place of purchase and other places declared 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 the exchange, the buyer has the right to return the purchased goods to the seller and receive the amount of money paid for it.

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

The list of goods that are not subject to exchange or return on the grounds specified in this article is determined in the manner prescribed by law or other legal acts..

The specified List is approved by the Decree of the Government of the Russian Federation on January 19, 1998 No. 55 and includes:

  1. Goods for the prevention and treatment of diseases at home (sanitary and hygiene items made of metal, rubber, textiles and other materials, medical instruments, appliances and equipment, oral hygiene products, spectacle lenses, child care items), medicines
  2. Personal hygiene items (toothbrushes, combs, hair clips, hair curlers, wigs, hairpieces and other similar products)
  3. Perfumes and cosmetics
  4. Textile goods (cotton, linen, silk, woolen and synthetic fabrics, goods from non-woven materials such as fabrics - ribbons, braid, lace and others); cable products (wires, cords, cables); building and finishing materials (linoleum, film, carpets, etc.) and other goods sold per meter
  5. Sewing and knitwear (sewing and knitted underwear, hosiery)
  6. Products and materials in contact with food, made of polymeric materials, including those for single use (tableware and tableware and kitchen utensils, containers and packaging materials for storing and transporting food products)
  7. Household chemicals, pesticides and agrochemicals
  8. Household furniture (furniture sets and sets)
  9. Products made of precious metals, with precious stones, made of precious metals with inserts of semi-precious and synthetic stones, faceted precious stones
  10. Automobiles and motorcycle goods, trailers and numbered units for them; mobile means of small-scale mechanization of agricultural work; pleasure boats and other watercraft for domestic use
  11. Technically complex household goods for which warranty periods are established (household metal-cutting and woodworking machines; household electrical machines and appliances; household radio-electronic equipment; household computing and duplicating equipment; photographic and film equipment; telephone sets and fax equipment; electric musical instruments; household gas equipment and devices)
  12. Civil weapons, main parts of civil and service firearms, cartridges for them
  13. Animals and plants
  14. Non-periodical publications (books, brochures, albums, cartographic and musical publications, sheet art publications, calendars, booklets, publications reproduced on technical media)

Protection of consumer rights when selling goods of inadequate quality.

In accordance with Art. 503 of the Civil Code of the Russian Federation the buyer, to whom the goods of inadequate quality are sold, if its shortcomings were not specified by the seller, at his choice, has the right to demand:

  • replacement of low-quality goods with goods of good quality;
  • proportional reduction of the purchase price;
  • immediate gratuitous elimination of defects in the goods;
  • reimbursement of expenses for the elimination of defects in the goods (clause 1).

2. In case of detection of defects in the goods, the properties of which do not allow to eliminate them (food products, household chemicals, etc.), the buyer, at his choice, has the right to demand the replacement of such goods with goods of appropriate quality or a proportional 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 contract of retail purchase and sale and demand the return of the amount paid for the product in the event of a significant violation of the requirements for its quality (Item 2 of Article 475).

4. Instead of presenting the requirements specified in paragraphs 1 and 2 of this article, the buyer has the right to refuse to fulfill the contract of retail sale and demand the return of the amount paid for the goods.

5. In case of refusal to fulfill the contract of retail purchase and sale with the requirement to return the amount paid for the goods, the buyer, at the request of the seller and at his expense, must return the received goods of inadequate quality.

When returning to the buyer the amount paid for the goods, the seller is not entitled to withhold from it the amount by which the cost of the goods has decreased due to the full or partial use of the goods, the loss of their presentation or similar circumstances.

The list of technically complex goods was approved by Decree of the Government of the Russian Federation on November 10, 2011 No. 924, according to which the following are classified as technically complex goods:

  1. Light aircraft, helicopters and aircraft powered by an internal combustion engine (with an electric motor)
  2. Passenger cars, motorcycles, motor scooters and vehicles with an internal combustion engine (with an electric motor) intended for movement on public roads
  3. Tractors, motoblocks, motor cultivators, machinery and equipment for agriculture with an internal combustion engine (with an electric motor)
  4. Snowmobiles and vehicles with an internal combustion engine (with an electric motor) specially designed for driving on snow
  5. Sports, tourist and pleasure vessels, boats, boats, yachts and floating transport vehicles with an internal combustion engine (with an electric motor)
  6. Navigation and wireless communication equipment for domestic use, including satellite communications, having a touch screen and having two or more functions
  7. System units, stationary and portable computers, including laptops, and personal electronic computers
  8. Laser or inkjet multifunction devices, monitors with a digital control unit
  9. Satellite TV sets, game consoles with digital control unit
  10. TVs, projectors with digital control unit
  11. Digital photo and video cameras, lenses for them and optical photo and cinema equipment with a digital control unit
  12. Refrigerators, freezers, washing machines and dishwashers, coffee machines, electric and combined stoves, electric and combined ovens, air conditioners, electric water heaters with an electric motor and (or) microprocessor automation

Judicial protection of consumer rights in retail sales.

Consumer protection cases are considered by courts of general jurisdiction and there is no mandatory claim procedure for resolving disputes in the retail sale of goods.

At the same time, according to paragraph 28 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17 “On consideration by courts of civil cases on disputes on the protection of consumer rights”, when resolving consumer claims, it is necessary to take into account that the burden of proof of circumstances exempting from liability for non-fulfillment or improper 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 a warranty period was established for the goods (work, service), as well as on the time when defects were discovered.

Allows the consumer to be reimbursed for losses in full. In this case, losses are compensated in excess of the penalty (penalty) established by law or contract.

When the court decides on the issue of compensation to the consumer for non-pecuniary damage, a sufficient condition for satisfying the claim is the established fact of violation of the consumer's rights. The amount of compensation for moral damage is determined by the court, regardless of the amount of compensation for property damage. The amount of compensation for moral damage awarded to the consumer in each specific case is determined by the court, taking into account the nature of the moral and physical suffering caused to the consumer, based on the principle of reasonableness and justice.

If the court satisfies the requirements of the consumer in connection with the violation of his rights established by the Law on the Protection of Consumer Rights, which were not satisfied voluntarily by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer), the court collects a fine from the defendant in favor of the consumer regardless of whether such a request was made to the court.

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