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

© Vadim Snegirev, 2023

ISBN 978-5-0060-9123-8

Created with Ridero smart publishing system

Unofficial translation from the Russian language

Approved
by the Presidium of the Supreme Court
of the Russian Federation
October 18, 2023

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.

According to paragraph 2 of Article 424 of the Civil Code of the Russian Federation, a change in price after the conclusion of an agreement is permitted in cases and on the conditions provided for by the agreement, the law or in the manner prescribed by law.

By virtue of paragraph 1 of Article 485 of the Civil Code of the Russian Federation, the buyer is obliged to pay for the goods at the price stipulated by the purchase and sale agreement, or, if it is not provided for by the contract and cannot be determined based on its terms, at the price determined in accordance with paragraph 3 of Article 424 of this Code, as well as perform, at your own expense, actions that, in accordance with the law, other legal acts, agreements or usually required requirements, are necessary to make the payment.

If the purchase and sale agreement stipulates that the price of the goods is subject to change depending on the indicators determining the price of the goods (cost, expenses, etc.), but the method for revising the price is not determined, the price is determined based on the ratio of these indicators at the time of conclusion contract and at the time of transfer of goods (clause 3 of Article 485 of the Civil Code of the Russian Federation).

Thus, from the content of the above rules of law in their interrelation it follows that, as a general rule, revision of the price of a product depending on changes in the cost of its constituent components is permitted in cases where the purchase and sale agreement provides for such a possibility.

In accordance with paragraph 1 of Article 16 of the Law on the Protection of Consumer Rights, unacceptable terms of the contract that infringe on the rights of the consumer are terms that violate the rules established by international treaties of the Russian Federation, this law, laws and other regulatory legal acts of the Russian Federation adopted in accordance with them, regulating relations in the field of consumer rights protection. Inadmissible terms of the contract that infringe on the rights of the consumer are void.

If the inclusion of conditions in the contract that infringe the rights of the consumer resulted in losses to the consumer, they are subject to compensation by the seller (manufacturer, performer, importer, owner of the aggregator) in full in accordance with Article 13 of the same law.

Paragraph 2 of Article 16 of the Law on the Protection of Consumer Rights establishes a list of unacceptable terms of the contract that infringe on the rights of the consumer, which, in particular, include: conditions granting the seller (manufacturer, performer, authorized organization or authorized individual entrepreneur, importer, owner of the aggregator) the right to unilateral refusal to fulfill an obligation or a unilateral change in the terms of the obligation (subject, price, term and other conditions agreed with the consumer), except for cases where the law or other regulatory legal act of the Russian Federation provides for the possibility of granting such a right by the contract (subparagraph 1).

The court of first instance found that the delivery of the car under the terms of the contract dated May 21, 2021 was not carried out; the defendant unilaterally refused to fulfill obligations through inaction, which caused losses to the plaintiff.

In canceling the court decision and refusing to satisfy the claim, the appellate court did not express any judgment about whether the contract dated May 21, 2021 was valid, whether it was executed by the seller, whether the rights of the plaintiff as a consumer were violated, given that, under the terms of the said agreement, the price of the car was not subject to change with an increase in the rates of tax, customs and other payments, the cost of transport and/or other expenses, as well as an increase in the maximum retail price of the car.

In support of the claims, S. indicated that on October 13, 2021, after the delivery of the car under the terms of the original contract was not carried out, he was forced to enter into a purchase and sale agreement with the seller for the car with an increased price.

These arguments of the plaintiff were not assessed by the court, in violation of the requirements of Article 198 of the Civil Procedure Code of the Russian Federation <6>, and there are no judgments on them in the judicial act.

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<6> Hereinafter – the Code of Civil Procedure of the Russian Federation.

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 imposition on the buyer of the consequences of an increase in the cost of the goods.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court dated May 30, 2023 N 75-KG23-3-K3.

6. The buyer has the right to present a claim to the seller regarding defects in goods for which no warranty or expiration dates have been established, if these defects are discovered within two years from the date of transfer of the goods to him and longer periods are not established by law or contract

D. and S. filed a lawsuit against the company (seller) for the protection of consumer rights, indicating that during the operation of the apartment that they purchased from the defendant under the purchase and sale agreement dated June 6, 2016, shortcomings in the construction work were identified. installation and finishing works.

In resolving the dispute and partially satisfying the claims, the court of first instance proceeded from the fact that during the five-year warranty period established by the Law on the Protection of Consumer Rights, defects were revealed in the apartment transferred to the plaintiffs, which were formed as a result of violations committed during construction work, then there arose before the transfer of the apartment to consumers.

Taking into account the foregoing, the court came to the conclusion to recover from the defendant in favor of the plaintiffs in equal shares the cost of eliminating the defects, determined by a forensic examination, as well as compensation for moral damages and a fine for failure to voluntarily meet consumer requirements.

The appellate court agreed with the conclusions of the first instance court, additionally pointing out that the choice of the person obligated at the consumer’s request in this case belongs to the consumer, and therefore recognized the complaint’s argument that the five-year warranty period applicable to construction work was not based on the law. should be used in relation to the apartment developer.

The Court of Cassation of General Jurisdiction left the court rulings in the case unchanged.

The Judicial Collegium for Civil Cases of the Supreme Court recognized the decisions of the courts of appeal and cassation as made in significant violation of the rules of law, canceled them and sent the case for a new appeal hearing.

According to paragraph 1 of Article 475 of the Civil Code of the Russian Federation, if the defects of the goods were not specified by the seller, the buyer to whom the goods of inadequate quality were transferred has the right, at his choice, to demand from the seller, among other things, reimbursement of his expenses for eliminating the defects of the goods.

If a warranty period or expiration date is not established for the goods, claims related to defects in the goods may be presented by the buyer, provided that the defects in the sold goods were discovered within a reasonable time, but within two years from the date of transfer of the goods to the buyer or within a longer period the period when such a period is established by law or the purchase and sale agreement (clause 2 of Article 477 of the Civil Code of the Russian Federation).

A similar rule is provided for in paragraph 1 of Article 19 of the Law on the Protection of Consumer Rights.

The court of first instance, assessing the nature of the controversial legal relations that arose between the parties, did not take into account the fact that legal relations had arisen between the parties arising from the real estate purchase and sale agreement dated June 6, 2016, in which the company (defendant) acts as the seller, and D. and S. – buyers. The developer of the building where the plaintiffs’ apartment is located is not the defendant, but another legal entity.

The relationship between the seller and the buyer is regulated by Chapter 30 of the Civil Code of the Russian Federation and Chapter 2 of the Law on the Protection of Consumer Rights.

Meanwhile, the court erroneously, when considering the dispute, was guided by paragraph 3 of Article 29 of the Law on the Protection of Consumer Rights, which is subject to application when protecting consumer rights when performing work (providing services), and came to the erroneous conclusion that claims related to defects in real estate, may be brought against the seller of real estate, who is not the developer, within five years after the conclusion of the purchase and sale agreement.

If the purchase and sale agreement for an apartment does not establish a warranty period for the apartment, and the law does not stipulate special periods during which the buyer could make a claim regarding the quality of the acquired real estate, then by virtue of paragraph 2 of Article 477 of the Civil Code of the Russian Federation and paragraph two of paragraph 1 of Article 19 of the Law on the protection of consumer rights, the period for submitting claims to the seller regarding defects in the apartment is two years from the date of its transfer to the buyers.

The courts have established that, under the purchase and sale agreement, the plaintiffs were given residential premises corresponding to the terms of the agreement dated June 6, 2016, the apartment was inspected by the buyers, the agreement has the force of an acceptance certificate, signed by the parties without claims to the property in the form in which it was at the time of certification of the contract.

According to the conclusion of the judicial construction and technical examination, the identified defects are obvious and could have been discovered by the plaintiffs when the apartment was transferred to them, but for two years the buyers did not contact the seller with any claims, which was not taken into account by the courts.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court dated August 30, 2022 N 51-KG22-6-K8.

7. The presence of a defect in a technically complex product that reappears during the warranty period after measures have been taken to eliminate it is an independent basis for satisfying the requirement to replace a low-quality product. At the same time, the possibility of eliminating such a defect, the proportionality of costs and the insignificance of time spent on eliminating it, as well as the absence of a ban on the use of goods with this defect, have no legal significance

T. filed a lawsuit against the company (seller) for the protection of consumer rights, indicating that a car purchase and sale agreement had been concluded between the parties. The car has a warranty period, during the period of which the buyer repeatedly contacted the official dealer to eliminate various deficiencies, including those related to the violation of the integrity of the driver’s seat trim, which appeared again. The claim to replace the car with a similar one was left unsatisfied by the defendant.

Refusing to satisfy the claims for replacement of goods and compensation for damages, as well as for the collection of a penalty, the court of first instance proceeded from the fact that although the declared defect in the form of a violation of the integrity of the covering of the driver’s seat trim does exist and appeared again after its elimination, however, this defect is not irreparable and does not impair the use of the vehicle.

The court also indicated that during the consideration of the case, it was not established that it was impossible to use a technically complex product during each year of the warranty period in total for more than thirty days due to the repeated elimination of its various shortcomings.

Конец ознакомительного фрагмента.

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