Article 32. Entry into force of the expected period for payment of labor pension established by this Federal Law

Article 32. The consumer’s right to refuse to fulfill a contract for the performance of work (rendering services)

This provision can very easily mislead the consumer as to whether he can refuse to perform a contract or perform services without causing significant problems.

The fact is that, while establishing the right of a consumer to refuse to perform a contract, the legislator did not provide for the right of the same consumer to demand the return of funds paid by the consumer under a contract or paid provision of services as an advance. In accordance with paragraph 3 of Article 450 of the Civil Code, in the event of a unilateral refusal to fulfill the contract in whole or in part, when such refusal is permitted by law or by agreement of the parties, the contract is considered respectively terminated or modified. In accordance with paragraph 4 of Article 453 of the Civil Code, the parties do not have the right to demand the return of what they performed under the obligation before the change or termination of the contract, unless otherwise established by law or agreement of the parties. Thus, if the contract provides for the payment of an advance, but does not provide for its return in the event of termination of the contract, the consumer, in the event of exercising his right on the basis of the commented norm, is deprived of the opportunity to return the money paid, even if the services or work were paid in full, and the contractor did not even begin for the execution of the contract.

In accordance with paragraph 5 of Article 453 of the Civil Code, if the basis for changing or terminating the contract was a significant violation of the contract by one of the parties, the other party has the right to demand compensation for losses caused by the change or termination of the contract. However, in this case, the refusal to fulfill the contract is not related to the seller’s violation of any obligations; the contract is terminated only at the request of the consumer. Therefore, he will not be able to claim the advance as losses incurred in connection with the termination of the contract.

It should be noted that the described incident is not something unique to the legislation on the protection of consumer rights and to all civil legislation in general. Many rules establishing the right of one of the parties to refuse to perform an agreement also contain instructions on the return of what has been performed under this agreement by the party refusing to perform it, but there are also a number of rules that establish the right of one of the parties to the agreement to refuse its execution without violation by the counterparty their obligations, but these rules do not indicate that the party that has exercised this right has the right to demand what has been performed under this agreement. First of all, this applies to the commented norm, as well as to Article 497 of the Civil Code.

Otherwise, any terms of the contract that in one way or another limit the consumer’s right to refuse to perform a contract or provide services are void. Agreements that a priori establish the amount of the contractor’s expenses to be reimbursed are also void. The consumer has an obligation to reimburse only expenses actually incurred, but not those agreed upon when concluding the contract.

If the contractor makes demands on the consumer for reimbursement of expenses related to the fulfillment of obligations under this agreement, then the contractor is obliged to substantiate his claims and provide both evidence of the expenses incurred and their amounts.

Here it should be noted that in most cases it is very difficult to identify the expenses of an organization incurred in connection with the execution of a specific contract, since such expenses also include those incurred to ensure the activities of the organization as a whole (rent of premises, payment of salaries to staff and etc.). Therefore, an accurate determination of the costs associated with the fulfillment of obligations under a specific contract is most often impossible without conducting a full audit of all activities of the organization. However, this does not exclude the possibility of the contractor making claims for reimbursement of certain expenses if he has evidence that they were incurred to fulfill the contract that the consumer refused to perform.

Comment source:

“ARTICLE-BY-ARTICLE COMMENTARY TO THE LAW OF THE RUSSIAN FEDERATION “ON PROTECTION OF CONSUMER RIGHTS”

V.R.Dvoretsky, 2009

Contents of Art. 32 TK

Employee representatives must have certain capabilities in order to successfully perform their functions of protecting them. Art. is aimed at guaranteeing such opportunities. 32 TK. It states that the employer is obliged to create conditions that will provide conditions for employee representatives for their activities.

Article 32 specifies in accordance with which acts these conditions must be created:

• current labor legislation;
• collective agreement;
• agreement.

Despite its small volume, Art. 32 plays an important role in current labor legislation, since it documents the obligation of the employing organization to ensure the functioning of legal representatives of the workforce.

Protection of rights under Article 23 of the Law

About Art. 23 of the Law must not be forgotten if the purchased product turns out to be defective. In this case, the buyer can choose one of the requirements provided for in paragraph 1 of Art. 18 of the Law. The store is given a certain period of time to complete it.

If the seller does not comply with these terms, Art. 23 of the Law gives the buyer the opportunity to hold him financially responsible.

The store will be obliged to pay a penalty (penalty) to the dissatisfied customer. It is calculated as 1% of the price of the goods for each day of delay.

The accrual of the penalty begins the next day after the end of the period of time allotted for the fulfillment of the consumer’s claim. The last day for which the store will pay penalties will be the date:

• voluntary fulfillment of obligations to the buyer;
• making a court decision in favor of the consumer.

If by the end of the penalty period the price of the product on the market has changed, the penalty will be calculated based on the new price.

The rules on penalties apply if the seller violates the deadline for compensating the buyer for losses or does not provide a similar item for the period of repair of the defective product.

Also, failure by the store to fulfill its obligations gives the buyer the right to change the original requirement. For example, if the seller does not promptly reimburse the costs of repairing a faulty baby stroller, the consumer may refuse to purchase or demand that it be replaced with a similar model.

Filing a new claim stops the accrual of penalties . But the buyer retains the right to penalties on the original claim that have accumulated by the day the seller receives a new claim.

What costs can be withheld when canceling a contract under Article 32 of the PPA?

Any costs that are incurred in performing your contract. But there are 3 conditions:

• The costs must be related to the performance of your contract. For example, a real estate agency pays for the publication of advertisements for the sale of your apartment in newspapers, on specialized websites, etc. The window installer purchases the profile to produce the windows you order.
• The costs must have been incurred before you submit your cancellation request. After receiving the application, the executing company is obliged to stop working under your contract. You are not obligated to compensate the contractor for costs incurred after you cancel the contract.
• Expenses must be documented. This means that the executing company must have the appropriate payment documents, contracts, and invoices.

If you cancel a subscription to attend some classes (for example, a swimming pool, a fitness club), a refund is usually made in proportion to the unused time.

Structure of Article 31 of the PZPP

Art. 31 of the consumer protection law implies the presence of three points:

1. The first paragraph determines the deadlines for completing the problems presented by the consumer that arose when identifying shortcomings in the work done. The period of time that the law allows for the fulfillment of claims made by the consumer (reimbursement of funds to eliminate deficiencies, reimbursement of spent funds) is 10 days.
2. The second paragraph reveals the nuances and time period of other justified consumer claims. We can talk about making a new thing or redoing the work specified in the contract from the very beginning. Such claims must be fulfilled within the deadlines established for various areas of activity. If this time is not determined, then the terms are agreed upon by the parties among themselves.
3. The third paragraph fixes the consumer’s rights to submit claims to the performing party for payment of a penalty in the event that the performer goes beyond the limits of the agreement prescribed by both parties or the law. The amount of the penalty is determined by Art. 28 ZZPP RF.

Comment: Art. 31 of the Law on the Protection of Consumer Rights imposes on the contractor the obligation to comply with the deadlines for fulfilling the customer’s claims. This ensures that the rights of the acquirer are not violated and that they are protected. In addition, the document provides for the imposition of forced payment of a penalty, the amount of which is determined by the same regulatory legal act.

Protection of rights under Article 23.1 of the Law

The store violates the buyer’s rights not only when selling low-quality goods, but also if it delays delivery of an item that has already been paid for. The consequences of such a violation are defined in Art. 23.1 of the Law.

The seller who misses the delivery deadline is obliged, at the customer's option:

• or deliver the goods on the day specified by the consumer;
• or return the purchase price.

The financial penalty will be the payment of a penalty to the buyer. Its size is equal to 0.5% of the prepayment for the goods per day.

The penalty is calculated from the date of failed delivery until the day the store returned the cost of the item or the buyer received the order.

Unlike the penalty under Art. 23 of the Law, the maximum penalties for violation of delivery deadlines cannot exceed the amount of advance payment for the goods.

If the buyer incurs losses due to a delay in delivery, the seller is obliged to cover them. Losses will be considered expenses that the consumer would not have incurred if the goods had been delivered on time. For example, a photographer had to rent equipment for shooting due to the fact that the lens he ordered was not delivered within the agreed time frame. The seller who violates the terms will have to reimburse the rental payments.

To receive liquidated damages and compensation for damages, the buyer must send a written claim to the seller. Having received this document, the seller must fulfill the requirements within 10 calendar days.

All the listed sanctions under Art. 23.1 of the Law do not apply if:

• delivery did not take place due to the fault of the buyer;
• The reason for the violation was force majeure . For example, if a strike by transport workers made it impossible to move around the city, and a car with goods could not reach the consumer.

“Review of the judicial practice of the Supreme Court of the Russian Federation No. 2 (2016)” (approved by the Presidium of the Supreme Court of the Russian Federation on July 6, 2016)

3. If the consumer refuses to fulfill the contract for the provision of paid educational services, the contractor is paid only the expenses actually incurred by him related to the fulfillment of obligations under this contract.

Z. filed a lawsuit against the educational institution to recover the amount of unjust enrichment and interest for the use of other people's funds.

In support of the stated requirements, she indicated that on July 19, 2013, an agreement was concluded between her and the educational institution for the provision of paid educational services for a period until June 30, 2023. Under the terms of this agreement, she accepted the obligation to pay monthly for her son’s education in the amount of 50,000 rub. Clause 6.3 of the agreement provided for payment for psychological and pedagogical testing services at all stages of training for the entire period in the amount of 200,000 rubles. The plaintiff fulfilled the obligation to pay for this testing in full; she paid 200,000 rubles. Due to the fact that the defendant changed the place of provision of educational services, the plaintiff was forced to abandon the contract, for which she sent a statement to the defendant, which also contained a request for the return of the amount paid for psychological and pedagogical testing. However, this application was rejected by the educational institution.

Since for a ten-year period of study the payment for psychological and pedagogical testing is 200,000 rubles, and Z. refused the contract after the first year of study, she asked to recover 180,000 rubles for the remaining nine years, which, in her opinion, is unjustified for the educational institution enrichment, as well as interest on the use of other people's money.

Resolving the dispute and refusing to satisfy the stated requirements, the court of first instance, referring to the regulations of the educational institution on the entrance psychological and pedagogical testing of students, as well as the regulations on admission to the educational institution, approved by the director of this institution on August 31, 2013 and May 30, 2013 Accordingly (hereinafter referred to as the Regulations on Entrance Testing and the Regulations on Admission), indicated that the psychological and pedagogical testing service provided for in the contract is a one-time service and was provided to the plaintiff upon admission of the student to the gymnasium.

The appellate court also agreed with these conclusions.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the conclusion of the courts for the following reasons.

The court in the case established that an agreement was concluded between the educational institution (the defendant in the case) and Z. for the provision of paid educational services under the program of primary and basic general education.

According to the preamble of the Law of the Russian Federation of February 7, 1992 N 2300-1 “On the Protection of Consumer Rights” (hereinafter referred to as the Law on the Protection of Consumer Rights), a consumer is a citizen who intends to order or purchase, or who orders, purchases or uses goods (work, services ) exclusively for personal, family, household and other needs not related to business activities; The contractor is an organization, regardless of its legal form, as well as an individual entrepreneur performing work or providing services to consumers under a paid contract.

As explained in the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights”, a service should be understood as an action (set of actions) performed by the contractor in the interests and at the request of the consumer in the purposes for which a service of this kind is usually used, or that meets the purposes of which the contractor was informed by the consumer when concluding a paid contract.

According to clause 2 of the Rules for the provision of paid educational services, approved by Decree of the Government of the Russian Federation of August 15, 2013 N 706 (hereinafter referred to as the Rules), the customer is an individual and (or) legal entity who intends to order or order paid educational services for himself or other persons on the basis of an agreement, and the contractor is an organization that carries out educational activities and provides paid educational services to the student.

Thus, the Law on the Protection of Consumer Rights also applies to relations arising from an agreement on the provision of paid educational services.

At the same time, as follows from the appealed court decisions, the Law on the Protection of Consumer Rights was not applied by the courts.

Failure by the court to apply this law in itself could lead to an incorrect resolution of the dispute due to an incorrect determination of the scope of the rights and obligations of the parties and an incorrect distribution of the burden of proof.

So, in accordance with Art. 10 of the Law on the Protection of Consumer Rights, the contractor is obliged to promptly provide the consumer with the necessary and reliable information, including the price and conditions for the provision of the service, as well as information about the rules for its provision.

According to paragraph 1 of Art. 12 of the same law, if the consumer is not given the opportunity to immediately receive information about the service when concluding a contract, he has the right to refuse to fulfill the contract within a reasonable time and demand a refund of the amount paid for the goods and compensation for other losses.

By virtue of Art. 13 of this law, unless otherwise provided by law, losses caused to the consumer are subject to compensation in the full amount in excess of the penalty (penalty) established by law or contract (clause 2).

The manufacturer (executor, seller, authorized organization or authorized individual entrepreneur, importer) is exempt from liability for failure to fulfill obligations or for improper fulfillment of obligations if he proves that the failure to fulfill obligations or their improper fulfillment occurred due to force majeure, as well as on other grounds provided for by law (clause 4).

As follows from paragraphs. 9 and 10 of the above Rules, the contractor is obliged, before concluding the contract and during its validity, to provide the customer with reliable information about himself and about the paid educational services provided, ensuring the possibility of their correct choice (clause 9).

The Contractor is obliged to provide the customer with information containing information about the provision of paid educational services in the manner and volume provided for by the Law on the Protection of Consumer Rights and Federal Law of December 29, 2012 N 279-FZ “On Education in the Russian Federation” (clause 10 ).

Referring to the Regulations on entrance testing and the Regulations on admission, the courts did not take into account the obligation of the contractor provided for by the above provisions of the Law on the Protection of Consumer Rights and the Rules to provide the customer with complete information about the conditions for the provision of the service and its payment, on the basis of which the consumer would be able to make a decision about choosing a service or refusing it.

The responsibility to prove the fact of providing the consumer with adequate information about the service is also assigned by law to the defendant.

As follows from the court decisions, the court did not establish that the plaintiff was familiar with the conditions that payment was made only for conducting entrance psychological and pedagogical testing, and there were no references to the fact that the defendant presented any evidence of fulfillment of his obligation to inform about this consumer.

In addition, it does not directly follow from the Admission Regulations that psychological and pedagogical testing is not carried out at subsequent stages of training.

The absence in the Regulations on Admission of instructions for testing at subsequent stages of training does not exclude the possibility that the parties could enter into an agreement on psychological and pedagogical testing at all stages of training.

The regulation on entrance testing, to which the court referred, was adopted on August 31, 2013, after the parties entered into an agreement for the provision of paid educational services, and provides for a different amount of payment for psychological and pedagogical testing services than that specified in the agreement between the parties.

The contract does not contain a reference to the Regulations on Admission and the Regulations on Entrance Testing in the part relating to the agreement on the psychological and pedagogical testing service.

In accordance with Art. 431 of the Civil Code of the Russian Federation, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained in it.

The argument of the courts of first and appellate instances that the 200,000 rubles contributed by the plaintiff. are a fee only for conducting entrance psychological and pedagogical testing, contradicts the content of the contract, which directly states that this is a fee for psychological and pedagogical testing services at all stages of training for the entire period of study.

In accordance with Art. 32 of the Law on the Protection of Consumer Rights, the consumer has the right to refuse to fulfill the contract for the provision of services at any time, subject to payment to the contractor for the actual expenses incurred by him in connection with the fulfillment of obligations under this contract.

The plaintiff’s refusal to further educate his son at a non-governmental educational institution, accordingly, implies the termination of testing services and the defendant’s lack of expenses for conducting it in the future.

Meanwhile, the appealed court decisions denied the consumer a refund of the amount paid in advance.

Taking into account the above, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the appeal ruling of the Judicial Collegium for Civil Cases of the regional court and sent the case for a new trial to the court of appeal.

What is regulated by Art. 31 Law of the Russian Federation: description and content

Art. 31 of the Law on the Protection of Consumer Rights regulates the implementation of time limits for satisfying certain customer requirements that he may legally present. Such requirements can be stated by the customer if he finds deficiencies or any disadvantages in the work performed or the service he ordered. The essence of the document and its importance is that if such defects and flaws are discovered in the executed order, the contractor is obliged to eliminate all these disadvantages in the shortest possible time. In the event that the customer makes other justified claims, the contractor is also obliged to fulfill them within the prescribed time without fail.