Art. 492 of the Civil Code of the Russian Federation briefly describes a contract for the retail sale of goods. We study the features of this type of agreement, its types. What are its differences from the supply contract? How is the conclusion process regulated, and what does the law say about the form of the contract?
Normative regulation
Art. 492 of the Civil Code of the Russian Federation directly refers to other provisions of the Code, provisions of other laws, in particular, on the protection of consumer rights. Parties, especially entrepreneurs and commercial organizations offering goods, are required to take into account other regulatory acts. The corresponding requirement is contained in paragraph 3 of Art. 492 of the Civil Code of the Russian Federation, but the law “On the Protection of Consumer Rights” restricts additional rule-making by acts of the Government.
The commented provisions of the law in this case regulate the systematic activity of the seller, and do not relate to individual sales made by citizens with their property.
The Supreme Court made its contribution by issuing clarifications on the application of acts on the protection of consumer rights, norms on the supply contract. They turn out to be useful, including in disputes with tax authorities.
Public contract
Art. 492 of the Civil Code of the Russian Federation contains a reference to the provisions on public contracts. Their peculiarity lies in the status of the parties: consumer citizens and entrepreneurs or commercial organizations. The law provides them with an extensive list of requirements:
- goods are sold to all persons who applied for their purchase without exception;
- the seller does not have the right to give preference to a particular person, with the exceptions provided for by laws;
- the conditions of sale must be the same, privileges are established in accordance with the provisions of the law or other regulatory acts;
- refusal to sell the goods, if any, is not allowed;
- refusal to sell the goods or illegal evasion of the offer to buy it, gives the seller the right to go to court with a request to oblige the seller to complete the transaction.
Purchase and sale agreements that are committed in violation of the principle of equality of arms or with non-compliance with the rules for the sale of certain goods are invalidated to the extent contrary to law.
Item of purchase
All products sold by retail chains or individual entrepreneurs are intended exclusively for family, personal or other purposes. The buyer can purchase the goods, including as a gift to someone, but not for further resale or use in production. The principle is based on Part 1 of Art. 492 of the Civil Code of the Russian Federation.
In practice, sellers plan the purchase and sale of goods designed for a population group or category of people, therefore, following this rule, difficulties usually do not arise.
The subject matter of the agreement is a product, not a service or other good in intangible terms.
The rules on retail trade do not apply to real estate, because transactions with it are highlighted in a separate paragraph of the code.
Comparison with supplies
If we compare Art. 492 and 506 of the Civil Code of the Russian Federation, we will see the difference between the supply contract and the sale of goods at retail.
- Delivery participants are entrepreneurs or commercial organizations.
- Goods are provided for commercial purposes.
- Among the essential conditions of supply is the time or schedule for the transfer of goods.
- Retailing does not imply a deadline (it is usually delivered immediately or delivery is determined by billeting or courier service).
Terms of agreement
The agreement is considered concluded from the moment the essential conditions are agreed. They are determined both by the provisions of the law and by agreement of the parties. In the case of retail, conditions are mainly determined by the seller. The buyer remains to agree to the proposed terms or refuse the transaction.
- subject of agreement - in accordance with Art. 492 of the Civil Code of the Russian Federation things that are used for personal purposes and are not related to the entrepreneurial activity of the buyer;
- the value or price of the goods - the law requires you to agree on it at the conclusion stage, as a rule, the buyer is introduced to it immediately;
- other conditions that are important, in the opinion of the parties.
If the rules for the sale of a certain type of goods or their sales scheme are approved, the contract or organization of trade must comply with these rules.
Additional rights and obligations of the parties
Such a short list of rights and obligations of the parties are not limited. The seller must transmit complete information about the product. Usually the technical and other documentation included in the kit is transmitted. In addition, information is provided on the shortcomings and features of the product. If the result of avoiding proper reporting is damage, the buyer has the right to demand compensation in court.
Detection of defects in the goods within a reasonable, agreed upon time gives the right to demand the termination of the agreement and the return of money and goods, respectively.
The above features are not mentioned in paragraph 1 of Art. 492 of the Civil Code of the Russian Federation, nor in other parts of the article, and reflect other provisions of the law.
Sometimes sellers try to include in the text of the agreement a description of the characteristics of the product, the condition for familiarization with them, in order to avoid claims from dissatisfied buyers in the future.
Varieties of contract
The current legislation identifies several forms of a retail sale contract:
- with the condition that the buyer accepts the goods within the allotted time;
- patterned acquisition;
- by organizing distance trading;
- using automated systems;
- with the coordination of delivery conditions.
The forms of retail purchase and sale used in practice are listed in the comments to Art. 492 of the Civil Code of the Russian Federation.
We note the right of the parties to conclude agreements of a mixed nature, consisting of elements of various types of agreements. So that the presented options for agreements do not constitute an exhaustive list.
Acceptance Condition
For starters, let's not forget about the lack of art. 492 of the Civil Code of the Russian Federation with strict instructions regarding the timing of the transfer of goods. The parties have the right to conclude an agreement with the condition of the transfer of goods in the future. Property transfer costs are included in the price. At the same time, there is no prohibition on imposing delivery costs on the buyer. This is practiced when transferring goods by mail.
Another way is practiced: the buyer is at the agreed place to receive the goods. If within the agreed time he is not, the seller has the right to consider this a refusal.
In this regard, the seller has the following options:
- sale of goods to another person;
- coercion to fulfill obligations (if the buyer did not have the right to withdraw from the contract);
- recovery from the buyer of losses caused by the cancellation of the agreement.
Sample
A potential customer is offered a sample product. In the modern world, familiarization with the types of goods using catalogs, booklets and videos capable of conveying characteristics is practiced. However, this method does not reflect the provisions on the rules of trade in goods according to samples (Decree No. 918, adopted in 1997). According to the document, a sample of the goods must be collected and in a technically sound condition be placed on the counter.
The rules allow the seller only to offer the organization of delivery using the postal service or otherwise. Forcing a buyer to consent is considered illegal.
All this complies with the requirement of Article 492 of the Civil Code of the Russian Federation to take into account normative acts adopted in order to protect consumer rights.
Distance trading
The mentioned method of trading is applicable when the buyer does not have the opportunity to familiarize himself with the sample of goods. He is provided with a video, booklet or catalog. According to this scheme, trade is organized in online stores.
The seller must provide access to information about the offered goods and about himself (name of organization, address, registration numbers, information on the current account).
The agreement or application drawn up by the buyer indicates his place of residence or location. And the transaction is deemed completed when the goods are delivered.
The buyer has the right to refuse the transaction until the receipt of the goods. In this regard, we note that the transfer is considered not to have taken place if the buyer refused to accept the goods by mail or courier service. A claim is drawn up and the goods are sent back.
Article 492 of the Civil Code of the Russian Federation is still being implemented using the rules for the provision of services by the postal service and the organization of distance trading.
Trading with automatic machines
Trade is organized using technical means. Through them, the consumer, having paid, receives the goods. As an example, recall the purchase of coffee, tea, sweets, toys, etc.
The seller remains obliged to provide information about himself with the help of a machine (F. I. O. IP or name of organization, registration data, contacts).
Also, information about the product and its features should be located on the machine. In the situation with the machine, the agreement is considered to be executed from the moment of depositing funds.
If the machine has not returned the goods or the delivery has occurred with violations, the buyer has the right to contact the seller for compensation or a refund. The machine does not always issue receipts, which complicates the situation.
This example shows the simplest scheme of a retail purchase and sale agreement and art. 492 of the Civil Code of the Russian Federation.
Coordination of delivery conditions
There are transactions subject to the provision of goods in the agreed place. Here, the delivery of goods is the seller’s responsibility. As a rule, it is delivered either by mail or by courier to the place specified in the agreement.
The direct recipient in the documents may indicate another person. Sometimes a special mark is made. Upon receipt of the goods, a passport is presented. Payment is made upon receipt or in advance, and a receipt or other document is presented to the courier.
Delivery time is not considered an essential condition, it is assumed that the obligation is fulfilled within a reasonable time (the Civil Code gives the seller 7 days).
Agreement form
In article 492 of the GKRF with comments, the question of the form of the agreement is not directly addressed. Nevertheless, it is important. How is he solved?
The seller has the right to sign an agreement with the client by drawing up a document in duplicate. It is proposed to fill out a standard form or fill out an application on the site, as described below.
Most often, receipts, including in electronic form, serve as confirmation of the transaction. If payment is made through the terminal, then there will be no stamps on the paper receipt, only numbers and letters.
In recent years, the use of automated filing systems has been widespread. The client needs to fill in a few lines on the screen, press the button - and the order is placed. This is even simpler than electronic documents, which also need to be certified with a digital signature.
Filling out the form, including in electronic form, is considered as giving consent to the transaction on the proposed conditions. The text of the contract is posted on the wall or on the website, depending on the organization of the trade.
Finally
Retail sale is a specific area. Because of this, there are also regulatory features. In particular, in addition to the provisions of the Civil Code, the provisions of the law on the protection of consumer rights and acts of the Government apply.
There are several types of contract (in particular, according to samples, sales through automatic machines, distance trading, etc.). The law does not limit the possible forms of organizing trade, especially given the modern development of the Internet.
The main way to conclude an agreement is to issue a receipt, and the execution of a familiar contract is also possible. The absence of a receipt does not deprive the consumer of the opportunity to attract witnesses to confirm the fact of purchase.