Art. 16 ZOZPP specifies the basic framework provided for when concluding contracts with consumers. Consider the features of the application of regulatory acts. What to do if an agreement has already been concluded and it already has similar conditions? What are the features of customer protection?
Regulatory Hierarchy
Art. 16 ZOZPP is part of a large document governing the acquisition of goods and services for personal needs not related to doing business.
The hierarchy of legislative acts is structured as follows:
- Civil Code;
- Law on Consumer Protection;
- Government regulations issued pursuant to law.
The law stipulates that the government does not have the right to transfer powers to other federal authorities with regard to rule-making in the field of consumer protection. The only by-laws in this area may be decisions of the Government.
The state of the regulatory framework
The provisions of the law have been repeatedly amended and supplemented. And Art. 16 is not an exception. Its first part has remained unchanged since its adoption. The second part is supplemented with a paragraph regarding the imposition of additional services or goods during the provision of warranty repairs in 2004. The third part was changed twice: in 1999 and 2013.
Application features
Finding the regulations to be applied is not so difficult. However, how to use them correctly? What restrictions are implied in Art. 16 ZOZPP?
If the authorized body does not approve a model or model contract or service rules, the entrepreneur has sufficient freedom to set out the terms of agreements with customers or establish service rules.
Then the terms of the contracts must fully comply with the law. If in many situations the law allows the parties to establish rules that differ from the norm in the law, this is prohibited here.
For this reason, lawyers of banks and organizations often lose cases only because of the particular status of the plaintiff or defendant. Given the typification of contractual work, the decline in the level of legal culture in society and for other reasons, this is repeated again and again.
What do invalid conditions mean?
What are considered invalid conditions according to Art. 16 ZOZPP? The provisions of the Civil Code apply to relations with consumers. According to its principles, a transaction is partially or fully invalidated in court.
There are two categories of invalid transactions: disputable and void. The former may be recognized as illegal, while the latter are automatically considered as such; there is no need for a court decision. When making a decision of the latter, invalidity is only stated.
The transaction is recognized as invalid in any part of it or in full. All this directly applies to consumers.
Imposing Services
It is no secret to anyone that companies and individual entrepreneurs impose additional goods or services, forcing consumers to purchase them.
To get a product or service, you need to purchase another product or service. And people are forced to spend money on unnecessary things.
The sale of goods in a bundle purchased earlier by the seller (furniture set, set of similar goods in packaging, etc.) is not considered an imposition.
If the product is sold individually by piece, but the seller forces the purchase of more goods than necessary, there is a violation of the law.
Is an offer to participate in a promotion or receive a discount on the purchase of additional goods considered an imposition? Not if the client had a free choice when concluding an agreement. And to prove his absence is not so simple.
Additional Service Requirements
Art. 16 the imposition of services is not limited. It is also forbidden to submit claims that are not related to marriage or defects in the goods.
The provision applies to the passage of service and the purchase of components in specific places, the presence of seals for acceptance of goods for warranty service. The reason for this approach is due to the wording of the law.
The person responsible for warranty service has the right to refuse the buyer due to marriage due to the actions of the latter, third parties or force majeure after the goods are transferred to the customer. At the same time, normative and technical acts may provide for a special procedure for the use of goods or products. And the claim is unlawful in one case may be completely justified in another.
Other forms of imposition
In part 3 of article 16 of the on imposed services, it is forbidden to provide additional work or services without the consent of the client. If they are paid, the client has the right to demand a refund. He is obliged only to reimburse the costs of already performed work or services. It is believed that for such violations should be punished guilty of deprivation of remuneration for imposed work or services.
As a general rule, it is required to obtain the consent of the client to provide additional services in writing. The oral form is permitted in the case prescribed by law. Despite sending it, finding permission is difficult, and entrepreneurs have to follow the rule.
Indemnification
In paragraph 1 of Art. 16 ZOZPP the consumer is entitled to compensation for losses incurred as a result of the fulfillment of the terms of the agreement that infringe on his rights.
What is meant by loss? The first option is the expenses incurred due to the actions of the contractor or seller. The second is the recovery of monetary amounts for which the contractor or seller was not entitled.
Interestingly, the article emphasizes the right to full damages.
Administrative responsibility
It is worth paying attention to part 2 of article 14.8 in the Code of Administrative Offenses. It regulates the prosecution of violators of consumer rights. This paragraph of the article refers specifically to the inclusion of infringing conditions in the agreement. A fine of 1 to 2 thousand rubles is charged from officials. More serious amounts are already taken from organizations: from 10 to 20 thousand rubles. As stated above, this happens without a protocol or regulation. Their publication and decision-making on them is the competence of employees of consumer protection bodies.
The courts indicate the sufficiency of introducing unlawful conditions into the contract; the presence of negative consequences is not part of the violation. And the signed document is a sufficient reason to bring the guilty person to administrative responsibility.
Consumer Rights Protection Procedure
If the consumer believes that his rights are violated, he can only go to court. Complaints to the authorized bodies make sense from the point of view of fixing the partner’s illegal behavior. Papers drawn up by authorized bodies are the only evidence of a violation.
What is the point of writing complaints somewhere other than court? Officials can directly go to court to protect their rights if the entrepreneur or firm refuses to recognize consumer complaints. The likelihood of appealing to the defense bodies of government representatives is higher when the interests of a group of persons are affected, in particular if the violations resonate in society.
Although in Art. 16 of the RF of the RF neither the court nor other authorized instances are mentioned, however, it indirectly directs the consumer to appeal to such institutions.
Arbitrage practice
A significant part of the judicial practice is cases of coercion to insurance at banks, insurance organizations and other companies. Of course, in these cases, the application of Part 2 of Art. 16 is not exhausted. Consider a number of positions developed by the courts:
- it is considered unlawful to impose a condition for a fine for refusing a service unilaterally (a ban on refusing a service is always considered unlawful);
- it is forbidden to restrict the right to choose a court in which disputes between a client and an executor are considered;
- it is unlawful to unilaterally change the terms of the contract;
- the terms of loan agreements for servicing loan accounts are illegal.
Additional requirements for payment for services by banks are allowed if they are independent.
It is forbidden to include a condition on obligatory insurance of life and health of a client in a loan agreement.
Courts consider the condition on the bank’s right to early termination of the loan agreement to be illegal. As a reason, banks used (and continue to do so) a change in their place of work, place of residence, value of the collateral object and other circumstances that are not directly related to violation by the client of the terms of the agreement with the credit institution.
Finally
In accordance with Article 16 of the RFL, freedom of contract in relations with consumers is limited: entrepreneurs or commercial organizations are not entitled to go beyond the scope of regulatory enactments.
The client to whom such services are imposed is entitled to rely on a full refund. The rules apply to goods and services or work. And in fact, and in another case, the criterion of the legitimacy of the actions of businessmen is the possibility of a consolidated choice. If it was not provided, the right to refuse the service or the offered goods is violated.
Performing a work or service, the contractor is not entitled to impose the provision or performance of another type of service, except that specified in the contract.