Review of Court Practice in Cases on Protection of Consumer Rights in Russia 2023

© Vadim Snegirev, 2023

ISBN 978-5-0060-9123-8

Created with Ridero smart publishing system

Unofficial translation from the Russian language

REVIEW OF COURT PRACTICE IN CASES ON PROTECTION OF CONSUMER RIGHTS

In order to formulate a uniform application of the rules of law by courts when resolving disputes in cases related to the protection of consumer rights, the Supreme Court of the Russian Federation <1> has prepared a review of topical issues of judicial practice that arose when considering cases of this category in 2022 – 2023.

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<1> Hereinafter – the Supreme Court.

Resolution of disputes regarding the protection of consumer rights related to with the sale of goods, performance of work (provision of services)

1. The seller is obliged to provide safe conditions for the health of consumers and the safety of their property. The emergence of a tortious obligation in itself does not exclude the possibility of applying to the legal relations of the parties the Law of the Russian Federation of February 7, 1992 N 2300-I “On the Protection of Consumer Rights” <2>

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<2> Hereinafter – the Law on Protection of Consumer Rights.

B. filed a lawsuit against the company for compensation for moral damage and collection of a fine provided for in paragraph 6 of Article 13 of the Law on the Protection of Consumer Rights, indicating in support of the claim that she was injured when she fell on the icy stairs of a store located in the premises rented by the defendant.

According to the protocol ruling of the court, an individual entrepreneur <3>, who is the owner of the premises, was invited to participate in the case as a co-defendant.

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<3> Hereinafter – individual entrepreneur.

Having established the fact of harm to B.‘s health as a result of improper maintenance of the stairs at the entrance to the store and evasion of voluntarily satisfying the consumer’s demands, the court of first instance recovered 35,000 rubles from the company and the individual entrepreneur in favor of the plaintiff. for compensation for moral damage and 17,500 rubles each as a consumer penalty.

the Law on the Protection of Consumer Rights was not applicable.

The rest of the decision of the trial court was left unchanged.

The Court of Cassation of General Jurisdiction left the appeal ruling unchanged.

The Judicial Collegium for Civil Cases of the Supreme Court, canceling the decisions of the courts of appeal and cassation instances and sending the case for a new appeal hearing, indicated the following.

From the preamble of the Law on the Protection of Consumer Rights and the clarifications contained in paragraph 1 of the Resolution of the Plenum of the Supreme Court dated June 28, 2012 No. 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights” <4>, it follows that the consumer is subject to including a citizen who has not yet taken the action of purchasing goods, but had the intention of ordering or purchasing, or ordering or purchasing goods (work, services).

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<4> Hereinafter is the resolution of the Plenum of the Supreme Court dated June 28, 2012 No. 17.

At the same time, as stated in the tenth paragraph of the preamble of the said law, the safety of a product (work, service) means the safety of a product (work, service) for life, health, property of the consumer and the environment under normal conditions of its use, storage, transportation and disposal, as well as the safety of the process of performing work (providing services).

The consumer has the right to ensure that the product (work, service), under normal conditions of its use, storage, transportation and disposal, is safe for the life, health of the consumer, the environment, and also does not cause harm to the consumer’s property (clause 1 of Article 7 of the Law on the Protection of consumer rights).

By virtue of the third paragraph of paragraph 2 of Article 7 of the said law, damage caused to the life, health or property of the consumer due to failure to ensure the safety of the product (work) is subject to compensation in accordance with Article 14 of this law.

Paragraph 1 of Article 14 of the same law stipulates that damage caused to the life, health or property of a consumer due to design, production, prescription or other defects of a product (work, service) is subject to compensation in full.

According to paragraph 138 of “GOST R 51303—2013. National standard of the Russian Federation. Trade. Terms and definitions,” the security of a trade service is understood as a set of properties of a service, the manifestation of which, under normal conditions of its provision, does not expose the life, health and property of the buyer (consumer) to an unacceptable risk..

From the above it follows that the seller is obliged to provide safe conditions for the health of consumers and the safety of their property. At the same time, the mere occurrence of an obligation arising from a tort does not exclude the possibility of qualifying the legal relations of the parties as legal relations between a consumer and a seller, and therefore does not exclude the application of the Law on the Protection of Consumer Rights in terms of liability measures for violation of consumer rights.

The court in the case established that B. suffered damage to her health when she fell on the icy stairs of the store where she came to purchase goods.

Under such circumstances, the failure of the courts of appeal and cassation to apply the provisions of the Law on the Protection of Consumer Rights is recognized as a significant violation of the norms of substantive law.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court dated February 14, 2023 N 66-KGPR22-15-K8.

2. The right to compensation for harm caused as a result of defects in the service (product) is recognized for any victim, regardless of whether he was in a contractual relationship with the performer (seller) or not

Ch. filed a lawsuit against the management company for damages, compensation for moral damages and collection of a fine for failure to comply with the voluntary procedure for satisfying consumer demands, citing the fact that his car was damaged by a stone that fell from the roof of an apartment building served by the defendant.

Resolving the dispute on the merits, the court of first instance came to the conclusion that the plaintiff’s car was damaged as a result of the defendant’s improper fulfillment of its obligations to maintain the common property of the apartment building – the roof, and therefore imposed an obligation on the management company to compensate for this damage.

Refusing compensation for moral damage and collecting a consumer fine, the court proceeded from the fact that Ch. is not the owner or tenant of a residential building in an apartment building, the maintenance and servicing of which is carried out by the defendant, and, accordingly, is not a consumer of the services provided by the management company.

The courts of appeal and cassation instances agreed with the conclusions of the court of first instance.

The Judicial Collegium for Civil Cases of the Supreme Court, canceling the decisions of the courts of appeal and cassation instances and sending the case for a new appeal hearing, indicated the following.

In accordance with the preamble of the Law on the Protection of Consumer Rights, this law regulates the relations that arise between consumers and manufacturers, performers, importers, sellers when selling goods (performing work, providing services), establishes the rights of consumers to purchase goods (work, services) of proper quality and safe for life, health, property of consumers and the environment, obtaining information about goods (works, services) and their manufacturers (performers, sellers), education, state and public protection of their interests, and also determines the mechanism for the implementation of these rights.

A consumer is a citizen who intends to order or purchase, or who orders, purchases or uses goods (work, services) exclusively for personal, family, household and other needs not related to business activities.

The contractor is an organization, regardless of its legal form, as well as an individual entrepreneur performing work or providing services to consumers under a paid contract.

At the same time, paragraph 2 of Article 14 of the Law on the Protection of Consumer Rights stipulates that the right to demand compensation for damage caused as a result of defects in goods (work, services) is recognized not only for the consumer himself, but also for any victim, regardless of whether he was in a contractual relationship relationship with the seller (performer) or not.

Thus, the Law on the Protection of Consumer Rights recognizes the right to compensation for damage due to defects in a product (work, service) also for the victim who did not have a contractual relationship with the seller (performer).

The courts found that the plaintiff suffered harm as a result of the defendant’s improper provision of services to consumers.

of the Law on the Protection of Consumer Rights to the legal relations of the parties.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court dated November 15, 2022 N 16-КГ22-27-К4. A similar legal position is set out in the ruling dated August 8, 2023 No. 4-KG23-37-K1.

3. An offer to sell a product posted on the seller’s website, addressed to an indefinite number of persons and containing detailed information about the product and its price, is a public offer. After the seller receives a consumer’s message about the intention to enter into an agreement on the terms of a public offer, the seller does not have the right to unilaterally change the announced price of the product

A. filed a lawsuit against the company (seller) to impose the obligation to transfer goods purchased remotely, indicating that a retail purchase and sale agreement for goods was concluded between the parties to the dispute through a mobile application and funds were debited from the plaintiff’s account in full payment for the goods.

Subsequently, the defendant reported the impossibility of delivering the ordered goods and returned the money paid to the plaintiff.

The company filed a counterclaim against A. to invalidate the purchase and sale agreement, citing the fact that a technical failure had occurred on the defendant’s website, as a result of which prices for goods began to be reflected incorrectly and clearly disproportionate to the usual cost of the relevant goods. After identifying a technical error, A. was sent a message about the impossibility of fulfilling the order at the indicated prices and was offered to purchase the goods from the order subject to an additional payment up to its full actual cost.

In resolving the dispute and recognizing the contract for the sale of goods as invalid, the court of first instance proceeded from the fact that during its conclusion there was an abuse of rights on the part of the buyer and a misconception caused by a technical error on the part of the seller.

The courts of appeal and cassation agreed with these conclusions.

The Judicial Collegium for Civil Cases of the Supreme Court recognized the court decisions in the case as made with significant violations of the law.

According to paragraph 1 of Article 494 of the Civil Code of the Russian Federation <5> the offer of a product in its advertising, catalogs and descriptions of goods addressed to an indefinite circle of persons is recognized as a public offer (paragraph 2 of Article 437 of the Civil Code of the Russian Federation), if it contains all the essential terms of the retail purchase agreement -sales.

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<5> Hereinafter – the Civil Code of the Russian Federation.

By virtue of paragraph 2 of Article 497 of the Civil Code of the Russian Federation, a retail purchase and sale agreement can be concluded on the basis of familiarization of the buyer with the description of the goods proposed by the seller through catalogues, prospectuses, booklets, photographs, communications (television, postal, radio communications and others) or other means excluding the opportunity to directly familiarize the consumer with the product or a sample of the product when concluding such an agreement (remote method of selling goods).

A similar definition of the sale of goods remotely is given in paragraph 1 of Article 26.1 of the Law on the Protection of Consumer Rights.

In accordance with paragraph 12 of the Rules for the sale of goods under a retail purchase and sale agreement, approved by Decree of the Government of the Russian Federation of December 31, 2020 N 2463, when selling goods remotely, the seller is obliged to conclude a retail purchase and sale agreement with any person who has expressed an intention to purchase the goods on the terms of the offer. A retail purchase and sale agreement is considered concluded from the moment the seller issues a cash or sales receipt or other document confirming payment for the goods to the consumer, or from the moment the seller receives a message from the consumer about the intention to enter into a retail purchase and sale agreement (clause 13 of these rules).

When selling goods remotely, the seller is obliged to post a public offer on the website and provide an opportunity for consumers to familiarize themselves with it.

The price is fixed at the moment of concluding an agreement between the buyer and the online store, which is determined by the moment the order is placed and assigned a number that allows the consumer to obtain information about the concluded retail purchase and sale agreement and its terms. The seller has no right to unilaterally change the price announced at the time of placing the order.

It follows from the court decision that the offer for the sale of goods posted on the defendant’s website, addressed to an indefinite number of persons, contained all the essential terms of the contract – detailed information about the goods, the price, and therefore was a public offer.

A. placed an order for goods and, having paid their cost, accepted the offer on the terms proposed by the seller, that is, a sales contract was concluded between the parties, in connection with which the seller had an obligation to transfer the goods to the buyer. However, the defendant, having received payment under the contract, did not send the goods to the buyer, citing a different actual cost of the goods.

Having established these circumstances, the court did not substantiate the abuse of rights on the part of the buyer and did not indicate how A., taking into account the seller’s periodic promotions, his acceptance of the order and full payment under the contract, should have recognized the presence of a technical error in the public offer.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court dated June 6, 2023 N 16-KG23-6-K4.

4. The seller does not have the right to include in the public offer a condition regarding the possibility of unilaterally canceling the placed order

V. filed a lawsuit against the company (seller) to impose the obligation to transfer the goods.

The courts have established that V. remotely entered into an agreement with the defendant to purchase a TV and paid for the goods. When placing the order, the delivery date for the TV was determined, but on the specified day V.‘s product was not delivered, and the money paid for it was returned. The seller, refusing to transfer the goods, referred to the fact that the TV specified in the order was not in stock.

The court’s decision satisfied the claim, and the company was obligated to hand over the television to the plaintiff.

Overturning the decision of the court of first instance and making a new decision to reject the claim, the appellate court, referring to the condition of the company’s public offer on the seller’s right to cancel the placed order if the goods are out of stock, indicated that the buyer was familiar with these conditions by posting them on website of the online store, and therefore the seller had no obligation to transfer the goods.

The Court of Cassation of General Jurisdiction agreed with the conclusions of the appellate court.

The Judicial Collegium for Civil Cases of the Supreme Court overturned the decisions of the courts of appeal and cassation and sent the case for a new appeal hearing, indicating the following.

Civil rights and obligations arise from contracts and other transactions provided for by law (subparagraph 1 of paragraph 1 of Article 8 of the Civil Code of the Russian Federation).

According to paragraph 1 of Article 420 of the Civil Code of the Russian Federation, a contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations.

By virtue of paragraph 1 of Article 432 of this code, an agreement is considered concluded if an agreement is reached between the parties in the form required in appropriate cases on all the essential terms of the agreement.

Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached.

An agreement is concluded by sending an offer (offer to conclude an agreement) by one of the parties and its acceptance (acceptance of the offer) by the other party (clause 2).

In accordance with paragraph 1 of Article 454 of the Civil Code of the Russian Federation, under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it.

According to paragraph 1 of Article 494 of the Civil Code of the Russian Federation, the offer of a product in its advertising, catalogs and descriptions of goods addressed to an indefinite number of persons is recognized as a public offer (paragraph 2 of Article 437), if it contains all the essential terms of the retail purchase and sale agreement.

By virtue of paragraph 2 of Article 497 of the Civil Code of the Russian Federation, a retail purchase and sale agreement can be concluded on the basis of familiarization of the buyer with the description of the goods proposed by the seller through catalogues, prospectuses, booklets, photographs, communications (television, postal, radio communications and others) or other means excluding the opportunity to directly familiarize the consumer with the product or a sample of the product when concluding such an agreement (remote method of selling goods).

A similar definition of the sale of goods remotely is given in paragraph 1 of Article 26.1 of the Law on the Protection of Consumer Rights.

In accordance with paragraph 12 of the Rules for the sale of goods under a retail purchase and sale agreement, approved by Decree of the Government of the Russian Federation of December 31, 2020 N 2463, when selling goods remotely, the seller is obliged to conclude a retail purchase and sale agreement with any person who has expressed an intention to purchase the goods on the terms of the offer.

According to paragraph 13 of these rules, a retail purchase and sale agreement is considered concluded from the moment the seller issues to the consumer a cash or sales receipt or other document confirming payment for the goods, or from the moment the seller receives a message from the consumer about the intention to conclude a retail purchase and sale agreement.

The offer posted on the company’s website for the sale of a TV, addressed to an indefinite circle of persons, contained all the essential terms of the contract – detailed information about the product, price, and therefore was a public offer.

V., having placed an order for the goods and paid its cost, accepted the offer, that is, a purchase and sale agreement was concluded between the parties, in connection with which the seller had an obligation to transfer the goods to the buyer.

The defendant’s arguments about the absence of the television set specified in the contract are not supported by objective evidence and do not indicate a loss of the possibility of fulfilling the contract, and the case materials do not contain information about the removal of such television sets from production.

Under such circumstances, the Judicial Collegium for Civil Cases of the Supreme Court recognized as erroneous the conclusions of the courts of appeal and cassation regarding the seller’s right to unilaterally cancel the placed order, that is, in fact, to refuse to fulfill the contract for the sale of goods.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court dated April 4, 2023 N 49-KG22-28-K6.

5. The seller does not have the right to unilaterally change the price of the goods determined by the purchase and sale agreement concluded with the consumer, and force the consumer to enter into a new contract on other terms, including due to an increase in the price of the goods by the time of its delivery, or additional costs for the seller. for the execution of the contract, etc.

S. filed a lawsuit against the company (seller) for the protection of consumer rights, indicating that on May 21, 2021, a purchase and sale agreement for a car was concluded between the parties at a price of RUB 3,497,000. The contract did not provide for the possibility of revising the price of the car.

S. made an advance payment to the seller’s account; the remaining part of the cost of the car, according to the terms of the contract, was to be paid at the time of transfer of the car to the buyer.

After the car arrived at the warehouse of the seller S., it was reported that the price of the car had increased and amounted to RUB 3,969,000. Since the seller refused to transfer the car at the price of the contract dated May 21, 2021, the plaintiff was forced to sign a sales contract on October 13, 2021 at a new price.

Resolving the dispute, the court of first instance concluded that there were grounds to satisfy the claim, indicating that all the necessary essential conditions were agreed upon by the parties in the agreement dated May 21, 2021, therefore, it was concluded on the terms defined therein and is subject to execution.

The appeal ruling overturned the decision of the first instance court, and a new decision was made in the case to dismiss the claim.

According to the court of appeal, between the parties, on October 13, 2021, another agreement for the purchase and sale of a car was concluded, which was executed, while S. was not deprived of the right to refuse its conclusion, insisting that the defendant fulfill his obligations under the agreement dated May 21, 2021.

The Court of Cassation of General Jurisdiction left the appeal ruling unchanged.

The Judicial Collegium for Civil Cases of the Supreme Court overturned the decisions of the courts of appeal and cassation and sent the case for a new appeal hearing on the following grounds.

Based on the provisions of Article 310 of the Civil Code of the Russian Federation, in the case where for at least one of the parties the obligation is not related to entrepreneurial activity, a unilateral change of the obligation by a person carrying out entrepreneurial activity is possible only by virtue of the law.

Based on paragraph 4 of Article 421 of the Civil Code of the Russian Federation, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (Article 422). In cases where the condition of the contract is provided for by a norm that is applied to the extent that the agreement of the parties does not establish otherwise (dispositive norm), the parties may, by their agreement, exclude its application or establish a condition different from that provided for in it. In the absence of such an agreement, the terms of the contract are determined by a dispositive norm.