Читать книгу Review of Court Practice in Cases on Protection of Consumer Rights in Russia 2023 - - Страница 7

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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