Property Responsibility Tool for sale. Violation of consumer rights under the contract of sale of goods on samples and providing in connection with such sales services. Implementation of mandatory rights
The article will discuss the responsibility of participants in the sale of sale and sale. What is the important responsibility, what are the nuances of the transaction, what to do in the case of a fake document - further.
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Following the legislation, the terms of the transaction must be fully fulfilled. Their violation will re-with the law and is its violation.
One of the parties (whose rights are violated) has the right to break the contract, give a chance to remedy errors. How to be when the terms of the agreement are violated? What is the responsibility of each part of the contract?
Important aspects
According to the general rules, both parties are responsible for both parties in case of violation of items. Under the contract, each participant has rights and obligations.
The responsibilities of the seller are:
Terms of products must be indicated in the Agreement. Seller's right:
- the customer's requirement to accept the goods;
- payment requirement for him;
- refusal to meet the requirements of the buyer in improper performance of the terms of the contract;
- requirement of interest payments for late production fee;
- refusal to make a deal in the event of a customer failure to make a charge fee.
The execution of the agreement may be suspended by the Seller until the board is making the goods. The buyer's duties include:
- acceptance of the transferred goods and payment for it;
- verification of the Seller on Delivery Violations or Packaging;
- the requirement to replace the goods (if it is spoiled).
The following are:
- requirement to transfer the goods to the term specified by the Agreement;
- refusal to accept the goods if the seller violated the delivery time;
- requirement to reduce the price;
- the requirement to replace the goods if it does not meet the requirements;
- refusal to execute the contract and demanding money.
In case of violations, one of the parties is responsible. Responsibility can occur in such cases:
- the goods were accidentally damaged;
- products were withdrawn from the buyer by a third party;
- the buyer was not transferred to the goods at the appointed time;
- the seller conveyed a smaller amount of product than was indicated in the contract;
- the range of the goods transferred to the buyer does not comply with the specified in the Agreement;
- improper product quality;
- the program during transmission was not equipped;
- the seller refused to transfer the goods to the buyer;
- one of the parties to the treaty refused to insure the goods.
Full responsibility is a guiding face. It happens that the organization changes in the organization. The responsibility of the director gene under the sale contract, which was concluded by the former manager, is absent.
It appears in the event that the transaction causes negative consequences. In this case, responsibility is imposed on a legal entity that the director is headed.
A common type of violation of the terms of the contract is the supply of low-quality products. The seller is obliged to sell such a product to the Buyer, which is listed in the Agreement.
The buyer has the right to extort not only the return of goods (qualitative), but also the payment of penalties and interest for caused by moral harm.
Responsibilities are registered in the contract in order to fulfill them to fully. This applies to both parties to the agreement. If one side fulfills the duty properly, the second should not shy away from the adoption of this performance.
What it is
What is its role
Responsibility plays a huge role in. It is aimed at recovery of damage from the side that violates the contract.
The sanction of responsibility is aimed at changing or a complete cessation of legal relations between the Parties to the Agreement.
The legislative framework
Responsibility of the parties under the Retail Sales Treaty is provided in.
Responsibility for violation of the contract of sale in the Civil Code of the Russian Federation
The main law regulating responsibility under the contract of sale is the Civil Code.
According to the Code, the seller and the buyer have certain rights and obligations under the contract. Having disturbed them, they are imposed on the responsibility of a property or criminal nature.
Fake document
The current Criminal Code contains an article that provides for responsibility for fake documentation. Responsibility can be not only a criminal.
Article 327 provides for the following responsibility:
Punishment can be administrative and criminal. The first is established in the event that the purpose of the subfiliation of the document was confirmation of the rights - previously acquired rights were, but at the time of the offense they were not confirmed.
Criminal liability occurs if the fake committed to establish this right.
Failure of obligations
Communication obligations must be fully fulfilled. Otherwise, on the side, violating the contract, the responsibility is imposed.
Allow the dispute and establish the type of responsibility can only court. If the obligations were not fulfilled by random coincidence, the responsibility is not provided.
In case of non-fulfillment of obligations, liability may occur both for the very fact of duties and consequences. The consequences of non-performance can attract responsibility measures or measures to measure.
The legislation provides for the following types of responsibility for non-fulfillment of obligations:
The consequences of each violation and responsibility for it are regulated by the Civil Code. The buyer's responsibility includes the seller's notice of the improper performance of the agreement and the violation of its conditions.
Follow signature
Cailed by law for fake not only documents, but also signatures. Signature is the main way to identify the person that has compiled a document.
Each person has a signature unique, the fake from the original is difficult to distinguish. But experienced experts when conducting research will be able to do this.
Fallation of the contract signature is punishable by law. Depending on the consequences of the counterfeit, the responsibility may be as follows:
| In case of fraud (theft of someone else's property or the purchase of rights to this property by lies) | Penalties of up to 120 thousand rubles or salary size. Also can be attracted to mandatory work for a period of up to 360 h or work of correctional nature until the year. Another type of responsibility is a freedom of up to 2 years or arrest up to 4 months |
| If fraud was committed by persons on prior agreement | Penalty up to 300,000 rubles. Also can attract to mandatory work up to 480 hours or corrective up to 2 years |
| If in the case of fraud a person used its official position | Penalties from 100 thousand to 500 thousand rubles. Could prescribe forced work up to 5 years (with deprivation of will for 2 years) or work without limitation of freedom to 6 years |
| Fraud that has committed a group of persons | What caused theft of large size - imprisonment of up to 10 years and a fine up to 1 million rubles |
The responsibility of the notary when issuing an agreement
For the correctness of the agreement, a notary (both legal and material) is the greatest responsibility.
If a prisoner is invalid, the court has the right to oblige a lawyer to cover the damage to the affected agreement.
If the transaction is drawn up with the help of a notary, you can not worry - it is carefully checking everything. He conducts an examination by analyzing every condition of the contract.
Conducts a conversation with people, is convinced of their savers, checks the capacity. It turns out that the parties have made the parties to sign a pressure contract.
Notary conducts a thorough check of documents. If the court reveals a mistake in the work of a notary (faked the signature, was in collusion and so on), then it will suffer responsibility on his own, paying a fine.
Preview agreement
A preliminary contract is an additional insurance for each of the parties to the sales agreement.
In such a contract, several conditions must be completed:
- the subject of the agreement - describe in detail the object;
- cost;
- the term of concluding the main contract.
Distribute the agreement can be possible early. This can be done mutually (by mutual agreement), if desired one of the parties.
Causes of termination must be clearly argued. If it is produced due to non-compliance with the terms of the contract, responsibility is provided.
The affected side has the right to demand from the second to pay a penalty or forced to conclude a basic agreement with the attraction of the court.
The purpose of the preliminary agreement is the proper execution of responsibilities, which will entail the conclusion of the main contract.
If the person did not fulfill his duties or fulfilled not fully, then the responsibility for him comes only in the presence of guilt.
Nuances depending on the object of the transaction
For each object of the contract of sale, the purchase and sale provides for responsibility.
Car
The car purchase agreement is regulated by the Civil Code. According to him, the buyer and the seller have rights and obligations under this agreement.
In case of violation, the conditions are responsible. Buyer has the right:
- put forward the requirement to transfer the vehicle;
- to present the requirements for a shortage of goods or breakdowns.
Requirements can be retractable during the warranty period of the car. Rights and Responsibilities of the Seller:
- demand to pay for cars;
- demand to pay a penalty for overdue payment;
- transfer the car, according to the terms of the contract.
The responsibility of the parties provides for the following:
- require full damages;
- refund of money (in case of refusal to continue agreement);
- payment of expenses.
The guilty side has the right to prove the absence of guilt.
With retail form
The retail sales contract is common. The purpose of such trade is to ensure the interests of the consumer. Practice shows that these rights are often violated.
Sellers do not provide truthful information about the product, do not comply with the right of the consumer to safety, violate the period of warranty and so on.
The Civil Code provides for the following types of retail sales contract:
- sale of products, subject to its acceptance by the Buyer on time;
- sale of goods by sample;
- using machine guns;
- sale subject to the delivery of goods to the buyer;
- hiring sale.
The parties to the agreement are the buyer and the seller. The responsibility of the seller includes the supply of high-quality goods, for a specific time limit. Buyer's duty is to take the goods and pay it.
The legislation provides for responsibility in case of violation of the terms of the agreement. Its degree depends on whether it is concluded or not.
If the seller did not provide product information before the conclusion of the Agreement, it is obliged to compensate losses.
In violation of the buyer's rights, not only property responsibility is provided, but also.
For violation of the deadlines or failure to comply with the requirements of the consumer, the Seller is obliged to pay him a penalty for every overdue day.
Its size is 1% of the cost of goods. Harm is reimbursed when it was caused during the shelf life of the goods or his service.
The basis for liberation from responsibility is proof that the consumer has violated the conditions for storing the goods or its use.
Retail responsibility provides the following:
Compensation size can only be installed.
The property
The fake of the contract for the sale of real estate is rare. But if a person falls into a similar situation, he needs to know what he has the right to count on. Common type of fraud - double sale.
Instead of the owner of the real estate object in the agreement indicate a person similar to him. The object is considered to be sold. The fraudster registers the ownership of him and puts the object for sale reuse.
Types of fraud:
For such fractions, responsibility is provided. Do not make a fee for real estate as long as the ownership of it is registered.
It is also necessary to carefully check the documents - the cadastral passport, ownership and other. Responsibility of the parties to arises from the moment of violations of the conditions.
If the buyer viz the payment time, he threatens the payment of interest. If the seller sold real estate inadequate quality, the buyer has the right:
- demand to reduce the purchase price;
- demand to eliminate shortcomings for a specific time;
- remove costs.
The buyer has the right to demand from the seller one of the above. Responsibility arises in violation of one of the terms of the agreement. The form of responsibility is the payment of penalties and damages.
Under the contract of sale, one party (seller) undertakes to transfer the thing (product) to the property of the other party (buyer), and the buyer to accept this product and pay for it a certain amount of money (price) (paragraph 1 of Art. 454 of the Civil Code of the Russian Federation).
Views:
Retail sale and sale;
Supply contract;
Contract of supply of goods for state or municipal needs;
Power supply contract;
Real estate sales contract;
The contract for the sale of the enterprise.
Substantial terms of contract: subject (name and quantity of goods). For business contracts, the conditions for quality, timing, containers, packaging are also.
The form of the contract is usually written. The contract can be enclosed in oral form by committing conventional actions.
The amount of goods is determined by the parties in physical terms or in monetary terms.
An important condition for the contract of sale is a condition for the quality of goods, which, although not relate to significant, however, the requirements are presented to it in accordance with the law.
Rights and obligations of Parties under the sale contract
The conditions determining the responsibilities of the seller include: the condition for the product, on the procedure and terms of its transfer to the buyer. The terms of the contract governing the procedure for adopting and paying goods are determined by the buyer's responsibilities.
In the event of a violation by the seller, the conditions of completeness of the goods or about the set of goods the buyer has the right to demand (Art. 480 of the Civil Code of the Russian Federation):
Proportionate to reducing the purchase price;
Dunklement of goods within a reasonable time.
If the seller does not duplicate the goods within a reasonable time, then the buyer has the right:
Demand the replacement of goods on the complete;
Refuse to execute the contract and demand the return of the payment paid.
Responsibility of parties under the contract of sale.
Responsibility of the parties when making a sales contract:
Violation of the consumer's property rights gives him the right to demand compensation for moral damage;
Responsibility for the violation of the rights of the consumer can be assigned both on the seller and on the importer and on the manufacturer of the goods;
Reimbursement of losses and payment of the penalty does not frees the seller from the performance of the duty in nature (Art. 505 of the Civil Code of the Russian Federation);
The buyer has broader rights in the event of the sale of him of improper quality (Art. 503 of the Civil Code of the Russian Federation), according to Art. 504 of the Civil Code Risk The risk of the cost of goods lies with the seller;
For violation of other terms of contract, the seller is responsible in accordance with the general provisions on the purchase and sale:
For non-fulfillment of the obligation to transfer the goods, accessories and documents to it - art. 463, 464 of the Civil Code of the Russian Federation;
For violation of the conditions of quantity - Art. 466 of the Civil Code of the Russian Federation;
About assortment - Art. 468 of the Civil Code of the Russian Federation;
About completeness, quantity - art. 466 of the Civil Code of the Russian Federation;
About Tare, Packing - Art. 482 Civil Code.
The consumer has the right to present the requirements associated with the disadvantages of the goods sold to him, which is not established a warranty period or shelf life, within a reasonable time (for movable things for at least 6 months, and 2 years for real estate).
Most often, the seller does not provide proper information about the product does not comply with the right of the buyer for the safety of the goods violates the execution of the warranty obligation, etc. At the same time, consumer violators can be as small business entities for example, auto repairors carrying out poor-quality repair and gigantic, in terms of consumer, hiding facts Release of unsafe goods. The Civil Code of the Russian Federation allocates the following types of contract of retail sale: sale ...
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The rules for the sale of goods for samples are developed in accordance with the Law of the Russian Federation "On Protection of Consumer Rights" from 07.02.1992. No. 2300-1 and determine the procedure for selling goods on samples and providing in connection with such sales services, as well as regulate the relationship between the buyer and the seller of goods.
Consumer rights under the contract of sale of goods for samples
The contract of sale according to the samples is a type of the contract of retail purchase - the sale of goods concluded on the basis of familiarization of the buyer with a model of the goods proposed by the seller and the goods exposed at the place of sale. Additional services can be provided with the sales of goods according to the samples by the Seller: on the delivery of goods, assembly, installation, in connection, commissioning, service and commissioning of technically complex products, which for specifications cannot be commissioned without the participation of relevant specialists . The buyer has the right to abandon the services offered by the Seller at the conclusion of the contract.
The general provisions of the Law of the Russian Federation "On Protection of Consumer Rights" of 07/07/2012 are applicable to the specified agreement. No. 2300-1 on the right to quality, security, timely and adequate information on the product and the services provided, as well as the provision of chapter 3 of the Law of the Russian Federation "On Protection of Consumer Rights". Art. 4 of the Law of the Russian Federation "On Protection of Consumer Rights" of 07/02/1992 No. 2300-1 states that the seller is obliged to transfer a product to the consumer suitable for the purposes for which the product of this kind is used. In the absence of conditions in the contract on quality, the Seller is obliged to transfer the goods to the consumer suitable for the purposes for which the product of this kind is commonly used. If the seller, at the conclusion of the contract, was informed by the consumer about the specific purpose of acquiring goods, he is obliged to transfer the consumer a product suitable for use in accordance with these goals. The seller is obliged to transfer the goods that meet the mandatory requirements established by the legislation.
Article 8, Art, Article 10 of the Law of the Russian Federation "On the Protection of Consumer Rights" of 07/02/1992 No. 2300-1 establishes the consumer's right to timely, full and reliable information about the seller (manufacturer) and sold goods. The seller must bring their full name to consumers, location, work. This information should be provided in Russian (additionally, at the discretion of the seller (manufacturer) in the languages \u200b\u200bof the constituent entities of the Russian Federation.
Information about goods (for imported goods - in Russian) and their manufacturers must contain:
-Name of product;
- Was sitting (legal address), brand name (name) of the manufacturer (seller), the location of the organization (organizations) authorized by the manufacturer (seller) to accept complaints from buyers and producing repair and maintenance of goods, for imported goods - the name of the country of origin goods;
- Recognition of standards, the required requirements of which the goods must be configured;
- Education about the main consumer properties, quality and safety of the goods;
-The conditions and conditions for the effective and safe use of the goods;
-top, order and terms of payment for goods (preliminary payment, payment after delivery and transfer of goods to the buyer and other conditions);
- Maranteal period, if installed for a specific type of goods;
- Service service or shelf life, if they are installed for a specific type of goods, as well as information about the necessary actions of the buyer after the expiration of the specified deadlines and possible consequences at the failure to comply with such actions, if the goods expire to the specified deadlines are dangerous, the health and property of the buyer or becomes unsuitable for use in purpose;
- a confirmation of the conformity of the goods established requirements (certificate number of conformity, the term of its action, the body, its issued, or registration number of the Declaration of Conformity, the term of its action, the name of the manufacturer (seller), who adopted the Declaration, and the authority, registered it);
- Provide and notice of the buyer of the Seller's consent to conclude an agreement;
Promotions, deadlines and conditions of delivery and transfer of goods to the consumer and providing other services offered by the seller.
Responsibility of the Seller for not the provision of adequate information is determined by Article 12 of the Law of the Russian Federation "On the Protection of Consumer Rights" from 07.02.1992. № 2300-1.
So, if the consumer is not given the opportunity to immediately obtain when concluding the contract the above information, it is entitled to demand from the reimbursement seller caused in connection with these losses caused to unreasonable evasion of the contract to enter into account, and if the contract is concluded, within a reasonable time to abandon its execution and demand a refund The amount paid for the goods and compensation for other losses.
If the purchased product eliminated the lack (shortcomings), the buyer should be provided with information about this.
In the written contract of sale for samples should be specified:
-Name and legal address of the seller,
-Familia, name, patronymic of the buyer or the person specified (recipient), the address in which the goods should be delivered;
-Name of the goods, the article, the number of items included in the package of the purchased goods, the price of goods;
-Vide services, time of its execution and cost;
-Articles of the seller and the buyer.
- Buyer to send goods by mail to the address "to demand" can be accepted only with the consent of the Seller.
The seller must pass the goods to the buyer in the manner and within the time set in the contract. Simultaneously with the goods, the seller is obliged to transfer to the buyer with documents related to it (technical passport, instruction manual and others).
The buyer before sending it the goods has the right to refuse to fulfill the contract subject to compensation for the seller of expenses incurred in connection with the action of actions to fulfill the contract.
Installation, connection, commissioning and commissioning of individual technically complex products, which, in accordance with the technical and operational documentation, it has been established for independent execution of these procedures by the Buyer, as well as the mandatory briefing on the rules for the use of goods are manufactured by service seller's services or other organizations with which The seller has contracts for the maintenance of goods sold by him.
The provision of these services should be implemented within the terms defined by the Agreement of the Parties, but no later than 7 calendar days from the date of delivery of goods to the buyer.
In case the delivery of the goods is made in the time established by the contract, but the goods were not transferred to the buyer for its fault, new delivery is made in new terms, coordinated with the seller after re-payment by the buyer of the cost of the delivery service.
In the case when the buyer is transferred to the product with violation of the terms of the agreement on quantity, assortment, completeness, packaging and (or) packaging of the goods, it is obliged no later than 20 days after receiving the goods to notify the seller about these violations.
If you detect violations of the terms of the product quality during the warranty period or the shelf life of goods or within a reasonable period, but not more than two years, if the warranty period or the shelf life is not established, the buyer informs the seller about these violations, but no later than twenty days after graduation This term. At the specified period, the goods can be returned to the seller, which is obliged to accept it and, if necessary, check its quality.
The consumer who sold the goods of improper quality, if it was not agreed by the seller, in accordance with Article 18 of the Law of the RF Law "On Consumer Protection" of 07.02.1992 No. 2300-1 has the right to demand: -Aspending the deficiencies of the goods or reimbursement of the costs of their correction by a buyer or a third party;
- separation reduction in the purchase price;
- Changes on the goods of the proper quality of a similar brand (model, article) or on the same product of another brand (model, article) with an appropriate recalculation of the purchase price. With respect to technically complex and expensive goods, these customer requirements are subject to satisfaction in the event of a detection of significant drawbacks;
-Attage contract. At the request of the Seller and at his expense, the buyer must return the goods with disadvantages.
The deadlines for the execution of these requirements by the Seller are determined in accordance with the Law of the Russian Federation "On Consumer Protection".
The buyer has the right to also require full compensation for damages caused to him as a result of selling goods inappropriate quality. Losses are reimbursed within the time set to meet the relevant customer requirements.
If the seller fails to transfer the goods the buyer has the right to refuse to execute the contract.
In the case where the seller, which received the amount of pre-payment of goods, does not fulfill the duty on its transfer to the term established by the contract, the buyer has the right to demand the transfer of paid product or return the amount of the preliminary payment for the goods that are not sent by the seller. At the same time, from the specified amount, the seller pays interest in the manner determined in accordance with the Civil Code of the Russian Federation.
Buyer's requirements associated with the termination of the contract, eliminate violations of its conditions, disabilities of goods, reimbursement of damages, are transmitted to the seller in writing with the application of the necessary documents that substantiate these requirements (a document certifying the purchase of goods on which the warranty period or the shelf life is established (services), technical passport or other replacing his document, warranty card, as well as documents confirming the disadvantages of goods and losses caused to the buyer in connection with the improper quality of goods).
The lack of a cash register of a cash or commodity check or other document certifying the fact and conditions for the purchase of goods is not a basis for refusing to satisfy its requirements and does not deprive it with the opportunity to refer to testimony in confirmation of the contract and its conditions.
The consumer's right to compensate for moral damage caused to the consumer as a result of a violation of its rights stipulated by the legislation on the protection of consumer rights, is regulated by ST15 of the RF Law "On Consumer Protection" of 07.02.1992. № 2300-1.
So, if the consumer is not given the opportunity to immediately get the above information at the conclusion of the contract, it is entitled to demand from the seller of compensation for losses caused in connection with this, or if in connection with unreliable information acquired goods does not have the necessary consumer properties - to demand the return of the amount and other losses .
The requirement of the consumer about the payment of penalty (penalties), in accordance with Article 13 of the Law of the Russian Federation "On Consumer Protection" of 07.02.1992. No. 2300-1 is subject to the satisfaction with the seller, an authorized organization or an authorized individual entrepreneur, importer) in a voluntary basis.
When satisfying the court's requirements established by law, the court charges from the seller, an authorized organization or an authorized individual entrepreneur, the importer for non-compliance with the voluntary order to meet the consumer's requirements a fine of fifty percent of the amount awarded by the Court in favor of the consumer.
In accordance with Article 14 of the Law of the Russian Federation "On the Protection of Consumer Rights" of 07.02.1992. No. 2300-1 Property responsibility for the harm caused due to the shortcomings of the product comes in cases:
1. Harm caused to life, health or consumer property due to constructive, production, prescription or other disadvantages of goods (work, services) is subject to compensation in full.
2. The right to demand compensation for harm caused due to the shortcomings of goods (work, services) is recognized for any victim regardless of whether it consisted of contractual relations with the seller (by the Contractor) or not.
3. The harm caused to life, health or the property of the consumer is subject to compensation if the harm caused during the established service life or the shelf life of the goods (work).
If the goods (the result of the work) should be installed in accordance with paragraphs 2, 4 of Article 5 of this Law, the service life or shelf life, but it is not installed, or the consumer was not provided with complete and reliable information on the service life or the expiration date, or the consumer It was not informed about the necessary actions after the expiration of the service life or the expiration date and possible consequences at the failure to comply with these actions, or the goods (the result of the work) at the expiration of these deadlines is dangerous for life and health, damage is subject to compensation regardless of its cause.
If, in accordance with paragraph 1 of Article 5 of this Law, the manufacturer has not established a service life (performer), damage is subject to refund (work) for ten years from the date of the transfer of goods (work) to the consumer, and if the transfer day is impossible , From the date of manufacture of goods (completion of work).
The harm caused due to the shortcomings of the goods is subject to compensation by the seller or the manufacturer of the goods for the choice of the victim.
Harm caused due to disadvantages of work or service is subject to the performer.
4. The manufacturer (executor) is responsible for the harm caused to life, health or consumer property due to the use of materials, equipment, tools and other means necessary for the production of goods (performance, service, services), regardless of whether the level of scientific And technical knowledge to identify their special properties or not.
5. The manufacturer (performer, seller) is exempt from liability if it proves that the harm is caused due to an insurmountable force or violation by the consumer of established rules for use, storing or transporting goods (work, services).
Consumer protection is carried out by the court.
Consumer Protection Claims may be presented on the selection of the plaintiff to the court at the place:
- the organization, and if the defendant is an individual entrepreneur - his residence;
-thetter or staying plaintiff;
-Conclination or execution of the contract.
- If the claim to the Organization follows from the activities of its branch or representation, it can be submitted to the court at the location of its branch or representation.
The Civil Code of the Russian Federation regulates the questions of the responsibility of the parties to the contract of sale. In particular, the responsibility of the Seller under the purchase and sale agreement is higher than that of the buyer, which is due to the high legal status of the buyer (consumer). Conditions in the sales contract, providing for a reduction in the responsibility of the Seller under the sale contract, are negligible if they contradict the norms of the right specified in the Civil Code of the Russian Federation and other regulatory legal acts.
Art. 557 of the Civil Code. In the case of transferring the seller to the buyer of real estate that does not comply with the terms of the contract for the sale of real estate about its quality, the rules of Art are applied. 475.
In accordance with Article 475 of the Civil Code of the Russian Federation, it is necessary to distinguish significant violations of the requirements provided for by the terms of the contract, and depending on the type of violations of the buyer, various rights are provided. But in any case, the buyer is not entitled to demand replacing immovable property, and a reasonable time is established to perform deficiencies in quality. Agreement may provide for any time.
Any contract, the subject of which is immovable property (and not only), generates mutual obligations of the parties, for example, the need to pay for the residential premises under the sale contract, to make a rent under the lease agreement, perform repairs under the construction contract and so on . All obligations must be performed properly, since their violation will entail a certain responsibility.
Responsibility measures are directed or to ensure the fulfillment of obligations, or to compensate for property losses that the victim carries. Therefore, according to her claim, the court applies these measures.
A person who did not fulfill or improperly fulfilled its obligations is responsible only if there is guilt (intent or negligence), if the law or contract does not provide for other grounds. The absence of guilt must prove the intruder side. But the person is not recognized as guilty if they have taken all measures to properly fulfill their obligations. If the obligations are violated by the person in the implementation of entrepreneurship, it is responsible if it does not prove that the proper execution was impossible due to force majeure. Such recognize force majeure, that is, emergency and unpredictable circumstances under these conditions. But in the contract, the parties have the right to envisage that only wine is a condition for the responsibility of the entrepreneur. If non-fulfillment or improper fulfillment of obligations occurred as a result of the fault of both parties, the court reduces the responsibility of the debtor. It can also be reduced if the lender is intentionally or by negligence contributed to an increase in losses, and also did not take measures to reduce them. The agreement concluded in advance of the agreement on the exemption from responsibility for the intentional violation of obligations is insignificant.
As a rule, in civil-law transactions, it is important not to incur damages. In this regard, Article 393 of the Civil Code of the Russian Federation provides for the responsibility of the debtor to compensate them - with the failure of or improper performance of its obligations. In this situation, it is important to determine what losses are. In accordance with Art. The 15 Civil Code of the Russian Federation under losses (real) understand the costs that the person whose right is broken has produced or should produce to restore the specified law, as well as loss or damage to property. In addition, losses consider the missed benefits - the incomplete income that the party would receive under normal civil turnover conditions if its right was not broken. When determining the missed benefits, take into account the measures taken by the lender for its preparation and made for this purpose.
When calculating losses, an important role is played by determining their price. As a general rule, prices existing in the place where the obligation should have been executed. If the requirement to compensation for damages was not satisfied voluntarily, then the cost of damages is determined on the day of the claim.
If the contract provides that for non-fulfillment or improper performance of obligations, the parties pay a penalty, then the loss is reimbursed in the part not covered by it. But other options may be stipulated: when they charge only a penalty, but not losses; when losses are accumulated in full premium over the penalty; When the creditor is charged or a penalty or loss.
It must be remembered that as a general rule, the payment of the penalty and the compensation of losses in the event of improper fulfillment of the obligation does not exempt the debtor from the fulfillment of the obligation in nature, unless otherwise provided by the contract or law. The laws may contain provisions in accordance with which the right to demand damages is absent.
Responsibility for failure to fulfill the monetary obligation occurs in the presence of a complete composition of the offense: firstly, the unlawful non-fulfillment of the monetary obligation (evasion of return, delay in payment, etc.), secondly, the use of foreign funds by the debtor due to their unlawful retention. The delay in payment by the debtor of the cash for the goods transferred to it (apartment, home, other real estate), work performed or services rendered should also be considered to use other people's funds. The measure of responsibility is to pay interest on this amount. Their size is determined by the lender existing at the place of residence (or at the location of the legal entity) of the banking interest rate on the day of the monetary obligation or its relevant part, unless otherwise established by the contract or law. In the Civil Code of the Russian Federation, the borrower's liberation is provided for the failure to fulfill the monetary obligation in case of delay from the lender. That is, if the lender refused to accept proper execution proposed by the debtor or did not accomplish actions, before the commission of which the borrower could not fulfill his obligation, the drawing occurred in his fault. In this case, the debtor is not obliged to pay interest, in addition, he is entitled to compensation caused by a delayed creditor of losses, unless he proves that the delay occurred in circumstances for which he himself nor the persons on which the execution is entrusted, Do not respond.
In addition to the foregoing, if the debtor did not fulfill his obligations, the lender is entitled to instruct their fulfillment by third parties for a reasonable price or fulfill them on their own and demand from the debtor to compensate incurred costs and other losses. But such expenses should be necessary. If they do not belong to those, it is not subject to reimbursement.
The Civil Code establishes that in the case of the transfer of a residential premises, the buyer has the right to demand: a proportionate price reduction, free of charge to eliminate deficiencies in a reasonable time, reimbursement of expenditures to eliminate deficiencies (Article 475 of the Civil Code of the Russian Federation). If there are significant drawbacks that cannot be eliminated without disproportionate expenses or are revealed repeatedly, the buyer has the right to refuse to fulfill the contract and demand the refund of the paid money (paragraph 1 of Article 475 of the Civil Code of the Russian Federation). If the buyer does not fulfill his obligation to pay, the seller has the right to demand it and pay interest for the illegal retention of foreign funds (paragraph 3 of Article 486 and Article 395 of the Civil Code) or termination of the contract, the return of real estate and reimbursement by the buyer of damages. The plenum of the Russian Federation on this occasion was expressed that "Registration of the transfer of ownership of the buyer for sold real estate is not an obstacle to the termination of a contract for the grounds provided for in Article 450 of the Civil Code of the Russian Federation, including in connection with the non-payment buyer of property" 25.02.98. № 8 // Vestnik of the Russian Federation. M., 1998. №10, p.15 ..
The Supreme Court of the Russian Federation clearly secured the priority of the Civil Code of the Russian Federation before the law on the protection of consumer rights. The consequences of the sale of real estate inadequate quality when purchasing it by a citizen consumer should be determined by the rules of Art. 557 of the Civil Code. In accordance with it, the consumer has the right in his choice when discovered in an apartment, a residential building, in a residential premises or other acquired real estate, not agreed by the seller of deficiencies require a commensurate decrease in the purchase price or gratuitous elimination of the seller of deficiencies, or compensation for its expenditures to eliminate deficiencies.
Refuse to fulfill the contract and demand the return of the payment paid by the consumer can only if the violation of the quality requirements is essential. A significant impairment in accordance with paragraph 2 of Art. The 475 Civil Code of the Russian Federation recognizes the detection of unreasonable shortcomings, disadvantages that cannot be eliminated without disproportionate expenses or time costs, or are repeated repeatedly, or appear again after their elimination, and other similar shortcomings, Levshin T.L. Some issues arising from the consideration of cases of improper quality of real estate acquired by citizens under the contract of sale for personal needs. // Comment of judicial practice. Release 10 / Ed. K.B. Yaroshenko. Legal literature, 2004 ..
Article 461. Responsibility of the Seller in case of seizure of the goods from the Buyer
1. When removing the goods from the buyer by third parties on the grounds that arose before the execution of the sale agreement, the Seller must reimburse the buyer to them losses, if he does not prove that the buyer knew or had to know about the presence of these grounds.
2. Agreement of the Parties on the release of the Seller from liability in the event of the requester of the purchased goods from the buyer by third parties or its limitation is invalid.
Article 551. State registration of the transfer of ownership of real estate
3. In the case when one of the parties evade the state registration of the transfer of ownership of real estate, the court has the right at the request of the other party, and in cases stipulated by the legislation of the Russian Federation on enforcement proceedings, also at the request of the judicial bailiff to make a decision on state registration Transition of property rights. The party, unreasonably evading the state registration of the transfer of ownership, should reimburse the other party losses caused by the delay in registration.
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