The provisions of civil law regulate the sale of goods according to samples and the remote way of selling goods. These types of transactions differ among themselves in the specifics of providing information on the proposed products. Key provisions governing the occurrence of these legal relations, contains art. 497 of the Civil Code of the Russian Federation. Let's consider it in detail.
General characteristics of transactions
The contract of retail sale is allowed to be concluded on the basis of familiarizing the consumer with examples of products exhibited at the place of their sale. This method has existed for a long time and has been successfully practiced in Russia. With the development of market relations, another option arose for such transactions. It is currently enshrined in law. So, with the current regulations, it is allowed to conclude a retail sale contract on the basis of familiarizing the consumer with the description of products through booklets, catalogs, photographs, brochures, communication tools or other methods that do not provide for the possibility of directly studying an example of a product during the execution of a transaction.
Fulfillment of conditions
About them it is said in paragraph 3 of Art. 497 of the Civil Code of the Russian Federation. The norm, in particular, states that, unless otherwise specified in regulatory enactments or an agreement, a transaction concluded under the conditions described above shall be deemed executed from the moment of delivery of the product to the address indicated in the executed documents. However, such information is not always present in the papers. In this case, the transaction will be deemed completed at the time of delivery of the product to the address of the consumer (citizen or organization). In paragraph 4 of Art. 497 of the Civil Code of the Russian Federation secured certain rights and obligations of the acquirer. Unless otherwise specified in regulatory enactments, then prior to the transfer of products, the consumer has the right to refuse to comply with the terms of the transaction by reimbursing the supplier for the necessary expenses that he incurred in connection with the implementation of actions by agreement.
Art. 497 of the Civil Code of the Russian Federation with comments
A specific feature of transactions concluded with the participation of the consumer is the need to provide him with information about the product. In accordance with the method of familiarization with the product description, there are two types of contract. First of all, these are transactions made during the sale of products by their examples. The second type is selling remotely. In the first case, the purchaser may personally familiarize themselves with the product. He has the right to inspect the product, check its characteristics. Features of the remote method of selling goods are that the acquirer does not have the above capabilities. In this case, the consumer receives the information he needs in writing, orally, in electronic form. Accordingly, the formation of the will of the acquirer is largely determined by the behavior of the subject implementing it. At the same time, the amount of information provided to the person, as well as the degree of its accessibility and visibility, is of no small importance.
Relationship Difficulty
Given the specifics of transactions of the second type, it became necessary to establish fairly stringent rules for the sale of goods remotely. This is due to the requirement to provide increased protection of the interests and rights of consumers. The sale of products without the possibility of direct acquaintance with them is quite complex. The developed rules for the sale of goods remotely regulate not only the actual process of the transaction, but also questions on the delivery of products to the buyer. In accordance with the applicable provisions, the entity selling the product is required to offer transportation of the order to the consumer's address. This can be done by mail or transportation indicating the type of vehicle and delivery option. Moreover, in accordance with Art. 16 of the Law governing the protection of consumer rights, the person selling the product should not carry out additional reimbursable activities without the consent of the acquirer. The buyer may refuse to pay for these services. If he has already transferred money for them, then he has the right to demand a refund.
Normative regulation
The transactions in question are regulated not only by Art. 497 of the Civil Code of the Russian Federation and other provisions of the Code. Normative regulation is carried out by the Law on the Protection of Consumer Rights, legal acts that determine the procedure for action by the parties to these legal relations. When using these provisions in practice, it is necessary to take into account the existing specifics of the content of transactions. In particular, this refers to the use of appropriate terminology in accordance with the Law on the Protection of Consumer Rights.
Contradiction in norms
In the Rules governing the sale of products by examples and description, there are a number of controversial issues. The contradiction is as follows. In accordance with Art. 497 of the Civil Code of the Russian Federation, types of transactions are clearly delineated among themselves. This differentiation is also confirmed by the Law on the Protection of Consumer Rights. In the previous version of Art. 497 of the Civil Code of the Russian Federation, the types of transactions under consideration did not formally differ. In this regard, in the current Procedure for the implementation of the sale of products with the direct participation of the acquirer, adopted in 1997, the previous terminology is preserved. In particular, the definition of the sale of products by samples also includes the implementation of a remote method. Meanwhile, in 2007, the Procedure for Transactions was adopted without the direct participation of the consumer. In the second paragraph of the Rules of distance selling, it is recognized as the implementation carried out by familiarizing the purchaser with the description of the product, which is present in booklets, brochures, other printed materials, by providing information using publicly available means of communication or by other methods that exclude the possibility of a personal study of the qualities of the product. The resulting contradiction should, in the opinion of experts, be resolved in accordance with paragraph three of Article 497 of the Civil Code of the Russian Federation and Art. 26.1 of the Law Regulating the Protection of Consumer Rights. If the acquirer, when making the transaction, has the opportunity to familiarize himself with the product example proposed by the distributor, then the Procedure adopted in 1997 should be applied. If there are no such conditions, then the Distance Trading Rules of 2007 are used.
The specifics of the provision of information
In the first and second paragraphs of the considered norm, the peculiarities of transactions are fixed when selling products remotely and according to the proposed examples. This specificity, as noted above, is due to the nature of the process of providing information. It lies in the fact that the acquirer receives information about the product when concluding an agreement as part of a procedure such as an “offer-acceptance”. Information may be provided by various methods. When sold on samples, the goods are demonstrated in the presence of the consumer. In addition, in addition, the display may be accompanied by an oral description of the characteristic. When selling remotely, the acquirer receives information in writing or in another form. However, he does not have the opportunity to directly familiarize himself with the example.
Information Composition
The consumer should receive information about the main characteristics of the product, the address of the seller, the place of creation of the product, the full name of the company implementing the sale. The information required to be provided to the purchaser also includes data on the cost and conditions of purchase, service life, delivery, service life, warranty period, and payment procedure. The offer shall indicate the date until which it is valid.
Additional data
In addition to the above information, the seller informs the buyer about:
- The need to attract qualified specialists for connecting, commissioning, commissioning of a technically complex product that cannot be launched independently by the purchaser in accordance with their specifics. This provision is present in paragraph three of the Rules for the sale of products remotely.
- The fact that the product was already in use or a defect was removed from it.
- The period during which the offer to purchase goods remotely will be valid.
Offer Requirements
When concluding retail sales contracts, the terms of the offer are governed primarily by the general provisions of civil law. Considering the specifics of providing information on products, the requirements regarding the exercise of the buyer's rights to receive information provided for in the regulatory act on the protection of consumer rights are additionally applied. The offer may be ordinary or public. If we talk about distance selling, the composition of the information included in the offer is defined in Articles 8-11 of the Law on the Protection of Consumer Rights. It is detailed in Art. 26.1, p. 2.
Acceptance
This document is drawn up in accordance with the general provisions of civil law. Additionally, due to the specifics of transactions, the above Rules apply to it. In accordance with the procedure for the sale of products as described, the acquirer accepting the proposal transmits a message about this to the implementing entity. This notice shall indicate:
- The full name and address of the seller, the name of the buyer, the place where the product must be delivered.
- Name of product, brand, article, number of units, variety, cost.
- Type of service (when provided), time and cost of execution.
- Obligations of the acquirer.
With this message, the Rules for the sale of products remotely associate an important legal consequence. It consists in the fact that the obligations of the entity carrying out the implementation of the terms of the transaction occur at the time of receipt of acceptance.