Читать книгу Review of Court Practice in Cases on Protection of Consumer Rights in Russia 2023 - - Страница 6

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.