Liability of the contract of sale. Violation of consumer rights under a contract for the sale of goods based on samples and the provision of services in connection with such a sale. Implementation of the rights of obligations

The article will deal with the responsibility of the participants in the sale and purchase transaction. What is the essence of responsibility, what are the nuances of the transaction, what to do in case of forgery of a document - further.

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Following the law, the terms of the transaction must be fully implemented. Their violation contradicts the law and is its violation.

One of the parties (whose rights have been violated) has the right to terminate the contract, to give the other party a chance to correct the mistakes. What to do when the terms of the agreement are violated? What is the responsibility of each party to the contract?

Important Aspects

According to the general rules, both parties at the conclusion of the contract are liable in case of violation of the clauses. Under the contract, each participant has rights and obligations.

The seller's obligations are:

The timing of the transfer of products should be specified in the agreement. Seller's rights:

  • demand from the customer to accept the goods;
  • demand payment for it;
  • refusal to satisfy the requirements of the buyer in case of improper performance of the terms of the contract;
  • requirement to pay interest for untimely payment for products;
  • refusal to execute the transaction in the event of the consumer's refusal to pay a fee for the goods.

The execution of the agreement may be suspended by the seller until the payment for the goods is made. The buyer's responsibilities include:

  • acceptance of the transferred goods and payment for it;
  • notifying the seller of violations of delivery or packaging;
  • the requirement to replace the product (if it is damaged).

The rights are as follows:

  • the requirement to transfer the goods within the period specified by the agreement;
  • refusal to accept the goods if the seller has violated the delivery time;
  • demand to reduce the price;
  • a requirement to replace the product if it does not meet the requirements;
  • refusal to perform the contract and the demand to return the money.

In case of violations of one of the parties, liability arises. Liability may arise in such cases:

  • the product was accidentally damaged;
  • the product was seized from the buyer by a third party;
  • the goods were not delivered to the buyer at the appointed time;
  • the seller transferred a smaller amount of goods than was specified in the contract;
  • the range of goods transferred to the buyer does not correspond to that specified in the agreement;
  • inadequate product quality;
  • the goods were not completed during the transfer;
  • the seller refused to transfer the goods to the buyer;
  • one of the parties to the contract refused to insure the goods.

The leader bears full responsibility. It happens that the director changes in the organization. Responsibility of the general director under the sale and purchase agreement that was concluded former leader, missing.

It appears in the event that the transaction causes negative consequences. In this case, the responsibility is imposed on the legal entity headed by the director.

A common type of violation of the terms of the contract is the supply of low-quality products. The seller is obliged to sell to the buyer such goods as specified in the agreement.

The buyer has the right to extort not only the return of the goods (of high quality), but also the payment of a penalty and interest for the moral damage caused.

Obligations in the contract are spelled out in order to fulfill them in full. This applies to both parties to the agreement. If one party performs an obligation properly, the other should not shy away from accepting this performance.

What it is

What is her role

Responsibility plays a huge role in . It is aimed at recovering damages from the party that violates the contract.

The sanction of liability is aimed at changing or completely terminating legal relations between the parties to the agreement.

The legislative framework

The liability of the parties under the retail sale and purchase agreement is provided for in.

Liability for violation of the contract of sale under the Civil Code of the Russian Federation

The main law governing liability under a sales contract is the Civil Code.

According to the code, the seller and the buyer have certain rights and obligations under the contract. Violating them, they are subject to liability of a property or criminal nature.

Document forgery

The current Criminal Code contains an article providing for liability for falsification of documents. Responsibility can be not only criminal.

Article 327 provides for the following liability:

Punishment can be administrative and criminal. The first is established if the purpose of the forgery of the document was to confirm the rights - previously acquired rights were, but at the time of the offense they were not confirmed.

Criminal liability occurs if the forgery was committed in order to establish this right.

Default

Obligations under the concluded agreement must be fulfilled in full. Otherwise, the party that violated the contract is liable.

Only the court can resolve the dispute and establish the type of liability. If the obligations were not fulfilled due to a coincidence, then liability is not provided.

In case of non-fulfillment of obligations, liability may arise both for the very fact of violation of obligations, and for the consequences. The consequences of non-compliance may lead to liability or protection measures.

The legislation provides for the following types of liability for failure to fulfill obligations:

The consequences of each violation and liability for it are regulated by the Civil Code. It is the responsibility of the buyer to notify the seller of improper performance of the agreement and violation of its terms.

Signature forgery

It is punishable by law to forge not only documents, but also signatures. The signature is the main way to identify the person who made the document.

Each person has a unique signature, it is difficult to distinguish a fake from the original. But experienced experts in the study will be able to do this.

Forgery of the signature of the contract is punishable by law. Depending on the consequences of forgery, liability may be as follows:

In case of fraud (theft of someone else's property or the purchase of rights to this property through lies) A fine of up to 120 thousand rubles or the amount of salary. They can also be involved in compulsory work for up to 360 hours or corrective work for up to a year. Another type of liability is imprisonment up to 2 years or arrest up to 4 months.
If the fraud was committed by persons by prior agreement Fine up to 300,000 rubles. They can also be involved in compulsory work up to 480 hours or correctional work up to 2 years.
If in case of fraud a person used his official position Penalty from 100 thousand to 500 thousand rubles. They can appoint forced labor up to 5 years (with deprivation of liberty for 2 years) or work without restriction of freedom up to 6 years
Fraud committed by a group of people What led to the theft of large amounts - imprisonment up to 10 years and a fine of up to 1 million rubles

Responsibility of a notary when drawing up an agreement

For the correct execution of the agreement, the notary bears the greatest responsibility (both legal and material).

If the concluded contract is declared invalid, the court has the right to oblige the lawyer to cover the damage to the injured party to the agreement.

If the transaction is executed with the help of a notary, you don’t have to worry - he carefully checks everything. He conducts an examination, analyzing each condition of the contract.

He conducts a conversation with people, makes sure of their sanity, checks their legal capacity. Finds out whether the parties were forced to sign the contract under pressure.

The notary conducts a thorough check of the documents. If the court reveals an error in the work of a notary (forged a signature, was in collusion, etc.), then he will bear responsibility on his own by paying a fine.

Draft view of the agreement

The preliminary contract is an additional insurance for each of the parties to the sale and purchase agreement.

Such an agreement must meet several conditions:

  • the subject of the agreement is to describe the object in detail;
  • price;
  • term of conclusion of the main contract.

You can terminate the agreement early. This can be done mutually (by mutual agreement), at the request of one of the parties.

Reasons for termination must be clearly stated. If it is done due to non-compliance with the terms of the contract, liability is provided.

The injured party has the right to demand that the other party pay a penalty or force the conclusion of the main agreement with the involvement of the court.

The purpose of the preliminary agreement is the proper performance of duties, which will entail the conclusion of the main contract.

If a person did not fulfill his obligations or did not fulfill them in full, then liability for him comes only if there is fault.

Nuances depending on the object of the transaction

For each object of the contract of sale, liability is provided.

Automobile

The contract for the sale of a car is governed by the Civil Code. According to him, the buyer and seller have rights and obligations under this agreement.

In case of violation of the conditions, liability arises. The buyer has the right:

  • make a request to transfer the vehicle;
  • make claims about the lack of goods or breakdowns.

Claims can be made during the warranty period of the car. Rights and obligations of the seller:

  • demand payment for a car;
  • demand payment of a penalty for late payment;
  • transfer the car, according to the terms of the contract.

The responsibility of the parties is as follows:

  • demand full compensation for damages;
  • money back (in case of refusal to continue the agreement);
  • payment of expenses.

The guilty party has the right to prove the absence of guilt.

In 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 respect the consumer's right to safety, violate the terms of the warranty, and so on.

The Civil Code provides for the following types of retail sales contracts:

  • sale of products subject to its acceptance by the buyer in a timely manner;
  • sale of goods according to the sample;
  • using automatic machines;
  • sale subject to delivery of goods to the buyer;
  • hire-sale.

The parties to the agreement are the buyer and the seller. It is the responsibility of the seller to deliver a quality product on time. It is the buyer's responsibility to accept the goods and pay for them.

The legislation provides for liability in case of violation of the terms of the agreement. Its degree depends on whether it is concluded or not.

If the seller has not provided information about the goods before the conclusion of the agreement, he is obliged to compensate for the losses.

In case of violation of the rights of the buyer, not only property liability is provided, but also.

For violation of the terms or failure to comply with the requirements of the consumer, the seller is obliged to pay him a penalty for each overdue day.

Its size is 1% of the value of the goods. Damage is compensated when it was caused during the shelf life of the product or its service life.

The basis for exemption from liability is proof that the consumer has violated the conditions for storing the product or its use.

The Retail Responsibility includes the following:

The amount of compensation can only be determined by the court.

The property

Forgery of a contract for the sale of real estate is rare. But if a person finds himself in a similar situation, he needs to know what he has the right to count on. A common type of scam is double selling.

Instead of the owner of the property, the agreement indicates a person similar to him. The object is considered sold. The scammer registers ownership of it and puts the object up for sale again.

Fraud types:

Liability is provided for such fraud. You should not pay a fee for real estate until the ownership of it is registered.

It is also necessary to carefully check the documents - the cadastral passport, ownership and others. The liability of the parties arises from the moment of violation of the conditions.

If the buyer violates the terms of payment, he faces the payment of interest. If the seller sold the property good quality, the buyer has the right:

  • demand a reduction in the purchase price;
  • demand the elimination of deficiencies within a specific period;
  • reimburse costs.

The buyer has the right to demand from the seller one of the above. Liability arises in case of violation of one of the conditions of the agreement. The form of liability is the payment of a penalty and compensation for losses.

Under the contract of sale, one party (the seller) undertakes to transfer the thing (goods) into the ownership of the other party (the buyer), and the buyer to accept this product and pay a certain amount of money (price) for it (clause 1, article 454 of the Civil Code of the Russian Federation).

Kinds:

Retail sale and purchase;

Supply contract;

Contract for the supply of goods for state or municipal needs;

Energy supply contract;

real estate sale agreement;

Company sale agreement.

Essential terms of the contract: item (name and quantity of goods). For business contracts there are also conditions on quality, terms, containers, packaging.

The form of the contract is usually written. The contract may be concluded orally, by performing conclusive actions.

The quantity of goods is determined by the parties in kind or in monetary terms.

An important condition of the contract of sale is the condition of the quality of the goods, which, although not essential, however, is subject to requirements in accordance with the law.

Rights and obligations of the parties under the contract of sale

The conditions that determine the obligations of the seller include: a condition on the goods, on the procedure and term for its transfer to the buyer. The terms of the contract, which regulate the procedure for accepting and paying for the goods, determine the obligations of the buyer.

In case of violation by the seller of the conditions on the completeness of the goods or on the set of goods, the buyer has the right to demand (Article 480 of the Civil Code of the Russian Federation):

Proportionate reduction of the purchase price;

Completion of goods within a reasonable time.

If the seller fails to complete the goods within a reasonable time, the buyer has the right to:

Require replacement of the goods with a complete one;

Refuse to perform the contract and demand a refund of the amount paid.

Responsibility of the parties under the contract of sale.

Responsibility of the parties when concluding a contract of sale:

Violation of the property rights of the consumer gives him the right to demand compensation for moral damage;

Responsibility for violation of consumer rights can be assigned to both the seller and the importer and the manufacturer of the goods;

Compensation for losses and payment of a penalty does not relieve the seller from fulfilling the obligation in kind (Article 505 of the Civil Code of the Russian Federation);

The buyer has broader rights in the event of the sale of an item of inadequate quality to him (Article 503 of the Civil Code of the Russian Federation), in accordance with Art. 504 of the Civil Code of the Russian Federation, the risk of a rise in the price of goods lies with the seller;

For violation of other terms of the contract, the seller is liable in accordance with the general provisions on the sale:

For failure to fulfill 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 on the quantity - Art. 466 of the Civil Code of the Russian Federation;

About the range - Art. 468 of the Civil Code of the Russian Federation;

About completeness, quantity - Art. 466 of the Civil Code of the Russian Federation;

About containers, packaging - Art. 482 of the Civil Code of the Russian Federation.

The consumer has the right to present claims related to the shortcomings of the goods sold to him, for which the warranty period or expiration date is not established, within a reasonable time (for movable things 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 buyer's right to the safety of the goods violates the deadlines warranty obligation At the same time, violators of consumer rights can be both small business entities, for example, car repair shops that carry out poor-quality repairs, and companies that are gigantic from the point of view of the consumer, hiding the facts of the release of unsafe goods. Civil Code Russian Federation distinguishes the following types of retail sale contract: sale ...


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The rules for the sale of goods by samples were developed in accordance with the Law of the Russian Federation "On the Protection of Consumer Rights" dated 07.02.1992. 2300-1 and determine the procedure for the sale of goods by samples and the provision of services in connection with such sale, as well as regulate the relationship between the buyer and seller of goods.

Consumer rights under a contract for the sale of goods based on samples

Sample sales contract is a type of retail sales contract concluded on the basis of the buyer's acquaintance with a sample of goods offered by the seller and displayed at the place of sale of goods. When selling goods according to samples, the seller can provide Additional services: delivery of goods, assembly, installation, connection, adjustment, after-sales service and commissioning technically complex goods, which technical requirements cannot be put into operation without the participation of relevant specialists. The buyer has the right to refuse the services offered by the seller at the conclusion of the contract.
Applicable to this agreement general provisions Law of the Russian Federation "On Protection of Consumer Rights" dated 07.02.1992 No. No. 2300-1 on the right to quality, safety, timely and appropriate information about the product and services provided, as well as the provision of Chapter 3 of the Law of the Russian Federation "On the 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 to the consumer a product suitable for the purposes for which the product of this kind is used. In the absence of quality conditions in the contract, the seller is obliged to transfer to the consumer a product suitable for the purposes for which a product of this kind is usually used. If the seller, at the conclusion of the contract, was informed by the consumer of the specific purposes of acquiring the goods, he is obliged to transfer to the consumer the goods suitable for use in accordance with these purposes. The seller is obliged to transfer the goods that meet the mandatory requirements established by law.
Article 8, Article 9, Article 10 of the Law of the Russian Federation "On Protection of Consumer Rights" dated 07.02.1992 No. 2300-1 establish the right of the consumer to timely, complete and reliable information about the seller (manufacturer) and the goods sold. The seller is obliged to bring to the attention of consumers his full name, location, mode of operation. This information must be provided in Russian (additionally, at the discretion of the seller (manufacturer) in the languages ​​of the constituent entities of the Russian Federation.
Information about goods (for imported goods - in Russian) and their manufacturers must contain:
-Name of product;
-location ( legal address), company name (name) of the manufacturer (seller), location of the organization (organizations) authorized by the manufacturer (seller) to accept claims from buyers and perform repairs and Maintenance goods, for imported goods- name of the country of origin of the goods;
- designation of standards, the mandatory requirements of which the product must comply with;
- information about the main consumer properties, quality and safety of goods;
- rules and conditions for the effective and safe use of the goods;
- the price, procedure and terms of payment for the goods (preliminary payment, payment after delivery and transfer of the goods to the buyer and other conditions);
- the warranty period, if it is established for a specific type of product;
- the service life or expiration date, if they are established for a specific type of product, as well as information about the necessary actions of the buyer after the expiration of the specified periods and possible consequences if such actions are not taken, if the product poses a danger to the life, health and property of the buyer after the expiration of the specified periods, or becomes unsuitable for its intended use;
- information on confirmation of the conformity of the goods with the established requirements (number of the certificate of conformity, its validity period, the authority that issued it, or the registration number of the declaration of conformity, its validity period, the name of the manufacturer (seller) that accepted the declaration, and the authority that registered it);
- the method and term for notifying the buyer of the seller of his consent to conclude an agreement;
-methods, terms and conditions of delivery and transfer of goods to the consumer and the provision of other services offered by the seller.
The responsibility of the seller for not providing proper information is determined by Article 12 of the Law of the Russian Federation "On Protection of Consumer Rights" dated 07.02.1992. No. 2300-1.
So, if the consumer is not given the opportunity to immediately receive the above information upon conclusion of the contract, he has the right to demand from the seller compensation for the losses incurred in connection with this, caused by unreasonable avoidance of concluding the contract, and if the contract is concluded, within a reasonable time, refuse to execute it and demand a return the amount paid for the goods and compensation for other losses.
If a defect (shortcomings) was eliminated in the purchased goods, the buyer must be provided with information about this.
V written contract sales by samples must indicate:
- name and legal address of the seller,
- last name, first name, patronymic of the buyer or the person (recipient) indicated by him, the address to which the goods should be delivered;
- name of the goods, article number, number of items included in the set of purchased goods, price of the goods;
- type of service, time of its execution and cost;
-obligations of the seller and the buyer.
- the offer of the buyer to send the goods by mail to the address "on demand" can be accepted only with the consent of the seller.
The seller is obliged to transfer the goods to the buyer in the manner and within the time specified in the contract. Simultaneously with the goods, the seller is obliged to transfer to the buyer the documents related to it (technical passport, operating instructions, etc.).
The buyer, before the transfer of the goods to him, has the right to refuse to perform the contract, subject to reimbursement to the seller of the costs incurred in connection with the performance of actions to fulfill the contract.
Installation, connection, adjustment and commissioning of certain technically complex goods, for which, in accordance with the technical and operational documentation, a prohibition is established for the buyer to independently perform these procedures, as well as mandatory instruction on the rules for using the goods, are carried out by the seller's service departments or other organizations with which the seller has contracts for the maintenance of goods sold by him.
The provision of these services must be carried out within the time period determined by agreement of the parties, but no later than 7 calendar days from the date of delivery of the goods to the buyer.
If the goods are delivered within the terms established by the contract, but the goods were not transferred to the buyer due to his fault, a new delivery is made within the new terms agreed with the seller after the buyer re-pays the cost of the goods delivery service.
In the event that the buyer is transferred the goods in violation of the terms of the contract on the quantity, assortment, completeness, container and (or) packaging of the goods, he is obliged to notify the seller of these violations no later than 20 days after receiving the goods.
If violations of the terms of the contract on the quality of the goods are found during the warranty period or the shelf life of the goods or within a reasonable time, but not more than two years, if the guarantee period or shelf life is not established, the buyer notifies the seller of these violations, but no later than twenty days after the end of this period. Within the specified period, the goods can be returned to the seller, who is obliged to accept them and, if necessary, to check their quality.
The consumer to whom the goods of inadequate quality were sold, if it was not specified by the seller, in accordance with Article 18 of the Law of the Russian Federation "On the Protection of Consumer Rights" dated 07.02.1992. No. 2300-1 has the right, at its choice, to demand: - gratuitous elimination of defects in the goods or reimbursement of expenses for their correction by the buyer or a third party;
- proportional reduction of the purchase price;
- replacement with a good quality product of a similar brand (model, article) or the same product of another brand (model, article) with a corresponding recalculation of the purchase price. With regard to technically complex and expensive goods, these requirements of the buyer are subject to satisfaction in the event of significant shortcomings;
- termination of the contract. At the request of the seller and at his expense, the buyer must return the goods with defects.
The deadlines for the fulfillment of these requirements by the seller are determined in accordance with the Law of the Russian Federation "On Protection of Consumer Rights".
The buyer also has the right to demand full compensation for losses caused to him as a result of the sale of goods of inadequate quality. Losses are reimbursed within the time limits established to meet the relevant requirements of the buyer.
If the seller refuses to transfer the goods, the buyer has the right to refuse to perform the contract.

In the event that the seller, having received the amount of advance payment for the goods, does not fulfill the obligation to transfer it within the time period established by the contract, the buyer has the right to demand the transfer of the paid goods or the return of the amount of advance payment for the goods not transferred by the seller. In this case, the seller pays interest on the specified amount in the manner determined in accordance with the Civil Code of the Russian Federation.
The requirements of the buyer related to the termination of the contract, the elimination of violations of its terms, defects in the goods, compensation for losses, are transferred to the seller in writing with an attachment required documents substantiating these requirements (a document certifying the fact of purchase in relation to goods for which warranty periods or expiration dates (services) are established, a technical passport or other document replacing it, a warranty card, as well as documents confirming the defects of the goods and losses caused to the buyer in due to inadequate product quality).
The buyer's lack of a cash or sales receipt or other document certifying the fact and conditions of the purchase of goods is not a reason to refuse to satisfy his requirements and does not deprive him of the opportunity to refer to witness testimony in support of the conclusion of the contract and its terms.
The right of the consumer to compensation for moral damage caused to the consumer as a result of violation of his rights provided for by the legislation on consumer protection is regulated by Article 15 of the Law of the Russian Federation "On Protection of Consumer Rights" dated 07.02.1992. No. 2300-1.
So, if the consumer is not given the opportunity to immediately receive the above information at the conclusion of the contract, he has the right to demand from the seller compensation for the losses caused in connection with this, or if, due to false information, the purchased product does not have the properties necessary for the consumer, to demand the return of the amount paid and other losses .
The requirement of the consumer to pay a penalty (penalty), in accordance with Article 13 of the Law of the Russian Federation "On Protection of Consumer Rights" dated 07.02.1992. No. 2300-1 is subject to satisfaction by the seller, authorized organization or authorized individual entrepreneur, importer) on a voluntary basis.
If the court satisfies the requirements of the consumer established by law, the court shall recover from the seller, authorized organization or authorized individual entrepreneur, importer for non-compliance with the voluntary satisfaction of the requirements of the consumer a fine in the amount 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" dated 07.02.1992. No. 2300-1, property liability for damage caused due to defects in the goods occurs in the following cases:
1. Harm caused to the life, health or property of the consumer due to design, production, prescription or other defects in the goods (work, service) is subject to compensation in full.
2. The right to demand compensation for damage caused due to defects in the goods (work, service) is recognized for any victim, regardless of whether he was in a contractual relationship with the seller (executor) or not.
3. Damage caused to the life, health or property of the consumer shall be subject to compensation if the damage was caused during the established service life or shelf life of the goods (work).
If the product (result of work) must be established in accordance with paragraphs 2, 4 of Article 5 of this Law, the service life or shelf life, but it is not established, or the consumer was not provided with complete and reliable information about the service life or shelf life, or the consumer was not informed about the necessary actions after the expiration of the service life or expiration date and possible consequences if these actions are not performed, or the product (result of work) after these terms poses a danger to life and health, the damage is subject to compensation regardless of the time of its infliction.
If, in accordance with paragraph 1 of Article 5 of this Law, the manufacturer (executor) has not established a service life for the goods (work), the damage is subject to compensation if it is caused within ten years from the date of transfer of the goods (work) to the consumer, and if the date of transfer cannot be established , from the date of manufacture of the goods (completion of work).
Damage caused due to defects in the goods is subject to compensation by the seller or manufacturer of the goods at the choice of the victim.
Damage caused due to defects in the work or service is subject to compensation by the contractor.
4. The manufacturer (executor) shall be liable for harm caused to the life, health or property of the consumer in connection with the use of materials, equipment, tools and other means necessary for the production of goods (performance of work, provision of services), regardless of whether the level of scientific and technical knowledge reveal their special properties or not.
5. The manufacturer (executor, seller) shall be released from liability if he proves that the harm was caused due to force majeure or violation by the consumer of the established rules for the use, storage or transportation of goods (work, services).
Protection of consumer rights is carried out by the court.
Claims for the protection of consumer rights may be brought at the choice of the plaintiff in the court at the place of:
-locating the organization, and if the defendant is individual entrepreneur, - his residence;
- residence or stay of the plaintiff;
- the conclusion or performance of the contract.
- If a claim against an organization arises from the activities of its branch or representative office, it can be brought to the court at the location of its branch or representative office.

The Civil Code of the Russian Federation regulates in some detail the issues of liability of the parties under the contract of sale. In particular, the seller's liability under the sales contract is higher than that of the buyer, due to the high legal status buyer (consumer). The conditions in the contract of sale, providing for the reduction of the seller's liability under the contract of sale, are void if they contradict the rules of law specified in the Civil Code of the Russian Federation and other regulatory legal acts.

Art. 557 of the Civil Code of the Russian Federation. In the case of transfer by the seller to the buyer of real estate that does not comply with the terms of the contract for the sale of real estate on its quality, the rules of Art. 475.

In accordance with Article 475 of the Civil Code of the Russian Federation, it is necessary to distinguish between significant violations of the requirements stipulated by the terms of the contract, and depending on the type of violation, the buyer is granted various rights. But in any case, the buyer does not have the right to demand the replacement of real estate, but a reasonable period is set for the fulfillment of quality defects. The contract may provide for any time period.

Any contract, the subject of which is real estate (and not only it), gives rise to mutual obligations of the parties, for example, the need to pay for housing under a sale and purchase agreement, pay rent under a lease agreement, perform repairs under a construction contract, etc. All obligations must be properly fulfilled, as their violation will entail certain liability.

Liability measures are aimed either at ensuring the fulfillment of obligations or at compensating for property losses incurred by the injured party. Therefore, according to her claim, the court applies these measures.

A person who has not fulfilled or improperly fulfilled his obligations shall be liable only if there is fault (intent or negligence), unless other grounds are provided by law or contract. Absence of guilt must be proved by the violating party. But a person is not found guilty if he has taken all measures for the proper performance of his obligations. If obligations are violated by a person in the implementation entrepreneurial activity, it is liable unless it proves that due performance was rendered impossible by force majeure. Force majeure, that is, extraordinary and unavoidable circumstances under the given conditions, is recognized as such. But in the contract, the parties have the right to provide that only fault is a condition for the liability of the entrepreneur. If the non-fulfillment or improper fulfillment of obligations occurred due to the fault of both parties, the court reduces the amount of the debtor's liability. It can also be reduced if the creditor intentionally or negligently contributed to the increase in losses, and also did not take measures to reduce them. An agreement concluded in advance on release from liability for intentional breach of obligations is void.

As a rule, in civil law transactions, it is important for the parties not to incur losses. In this regard, Article 393 of the Civil Code of the Russian Federation provides for the obligation of the debtor to compensate them - in case of non-fulfillment or improper fulfillment of its obligations. In this situation, it is important to define what losses are. In accordance with Art. 15 of the Civil Code of the Russian Federation under the losses (real) understand the costs that the person whose right is violated has made or will have to make to restore the said right, as well as the loss or damage to property. In addition, losses are considered lost profits - lost income that the party would have received under normal conditions of civil circulation if its right had not been violated. When determining the lost profit, the measures taken by the creditor to obtain it and the preparations made for this purpose are taken into account.

When calculating losses, an important role is played by determining their price. By general rule take into account the prices prevailing at the place where the obligation was to be settled. If the claim for damages was not satisfied voluntarily, then the cost of losses is determined on the day the claim is filed.

If the contract stipulates that the parties pay a penalty for non-fulfillment or improper fulfillment of obligations, then the losses shall be compensated in the part not covered by it. But other options can be stipulated: when only a penalty is collected, but not losses; when losses are recovered in full in excess of the penalty; when, at the choice of the creditor, either a penalty or damages are collected.

It must be remembered that, as a general rule, the payment of a penalty and compensation for damages in the event of improper performance obligations do not release the debtor from the performance of the obligation in kind, unless otherwise provided by the contract or law. Laws may contain provisions under which there is no right to claim damages.

Responsibility for non-fulfillment of a monetary obligation arises in the presence of full membership offenses: firstly, unlawful non-fulfillment of a monetary obligation (avoidance of return, delay in payment, etc.), secondly, the use by the debtor of other people's Money due to their illegal retention. The delay in payment by the debtor of monetary amounts for the goods transferred to him (apartment, house, other real estate), work performed or services rendered should also be considered the use of other people's funds. The measure of responsibility is the payment of interest on this amount. Their size is determined by the existing place of residence of the creditor (or at the location legal entity) the discount rate of bank interest on the day of fulfillment of the monetary obligation or its corresponding part, unless otherwise provided by the agreement or law. The Civil Code of the Russian Federation provides for the release of the borrower from liability for non-fulfillment of a monetary obligation in case of delay on the part of the creditor. That is, if the creditor refused to accept the proper performance proposed by the debtor or did not take actions before which the borrower could not fulfill his obligation, the delay occurred through his fault. In this case, the debtor is not obliged to pay interest, in addition, he acquires the right to compensation for losses caused by the delay of the creditor, unless he proves that the delay occurred due to circumstances for which neither he himself nor those persons who are entrusted with the acceptance of performance, do not answer.

In addition to all of the above, if the debtor has not fulfilled his obligations, the creditor has the right to entrust their performance to third parties at a reasonable price within a reasonable time or to perform them on his own and demand that the debtor reimburse the incurred expenses and other losses. But such expenses must be necessary. If they are not one of them, then they are not subject to compensation.

The Civil Code of the Russian Federation establishes that in the event of the transfer of a dwelling that does not comply with the terms of the contract on its quality, the buyer has the right to demand: a commensurate price reduction, gratuitous elimination of defects within a reasonable time, reimbursement of expenses for the elimination of defects (Article 475 of the Civil Code of the Russian Federation). If there are significant shortcomings that cannot be eliminated without disproportionate costs or are identified repeatedly, the buyer has the right to refuse to perform the contract and demand a refund of the money paid (clause 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 the payment of interest for the unlawful withholding of other people's funds (clause 3 of article 486 and article 395 of the Civil Code of the Russian Federation) or termination of the contract, return of real estate and compensation by the buyer for losses caused. The Plenum of the Supreme Arbitration Court of the Russian Federation on this occasion stated that “registration of the transfer of ownership to the buyer for the sold real estate is not an obstacle to terminating the contract on the grounds provided for in Article 450 of the Civil Code of the Russian Federation, including in connection with the non-payment by the buyer of the property” Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 02/25/98. No. 8 // Bulletin of the Supreme Arbitration Court of the Russian Federation. M., 1998. No. 10, p. 15 ..

The Supreme Court of the Russian Federation clearly established the priority of the Civil Code of the Russian Federation over the Law on the Protection of Consumer Rights. the consequences of the sale of real estate of inadequate quality when it is acquired by a citizen-consumer should be determined according to the rules of Art. 557 of the Civil Code of the Russian Federation. In accordance with it, the consumer has the right, at his choice, upon discovery of defects not specified by the seller in an apartment, residential building, other residential premises or other acquired real estate, to demand a commensurate reduction in the purchase price or the seller’s removal of defects free of charge, or reimbursement of his expenses for the elimination of defects.

The consumer can refuse to fulfill the contract and demand the return of the amount of money paid only if the violation of quality requirements is significant. A significant violation in accordance with paragraph 2 of Art. 475 of the Civil Code of the Russian Federation recognizes the discovery of irreparable shortcomings, shortcomings that cannot be eliminated without disproportionate costs or time, or are detected repeatedly, or appear again after their elimination, and other similar shortcomings Levshina T.L. Some issues that arise when considering cases of inadequate quality of real estate acquired by citizens under a contract of sale for personal needs. // A comment judicial practice. Issue 10 / Ed. K.B. Yaroshenko. Legal Literature, 2004..

Article 461. Liability of the seller in case of withdrawal of goods from the buyer

1. When the goods are withdrawn from the buyer by third parties on grounds that arose before the execution of the contract of sale, the seller is obliged to compensate the buyer for the losses incurred by him, unless he proves that the buyer knew or should have known about the existence of these grounds.

2. The agreement of the parties on the release of the seller from liability in case of reclaiming the purchased goods from the buyer by third parties or on its limitation is invalid.

Article 551

3. In the event that one of the parties evades state registration transfer of ownership of real estate, the court has the right, at the request of the other party, and in cases provided for by the legislation of the Russian Federation on enforcement proceedings, also at the request of a bailiff, to make a decision on state registration of the transfer of ownership. The party that unreasonably evades the state registration of the transfer of ownership must compensate the other party for losses caused by the delay in registration.

 

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