Very often, contracts contain conditions that maximize the performance of obligations by counterparties. Among them, various security measures, the possibility of unilaterally breaking the agreement, etc. At the same time, the own responsibility of business entities is minimized and limited. Moreover, in order to maximize profits and increase sales, sellers try to impose additional services. Their implementation occurs in different ways. For example, the imposition of additional services is carried out as part of the main contract. Some sellers put forward a condition under which a contract is signed only in the event of the conclusion of related agreements. Let us further consider what the law on the imposition of services says.
Freedom of contract
Such a principle is provided for in regulatory enactments. Acting in accordance with it, sellers connect the receipt of the main service by the client through the acquisition of another, additional. In some cases, business entities require a fee in excess of the contracted amount. For example, this may be the payment of interest for opening and servicing a loan account, for early repayment of a loan, and so on. All this is the imposition of additional services. Related conditions are established by sellers unilaterally and recorded in standard forms. Clients may enter into such agreements solely by joining the services offered as a whole. This significantly limits the freedom of contract, as it excludes the possibility of counterparties to participate in the creation and establishment of conditions.
Consumer rights Protection
The imposition of services puts customers at a disadvantage. The buyer becomes a weaker participant in the relationship. Accordingly, increased state protection is needed. This, in turn, requires restricting the freedom of contract for another participant. When purchasing services, goods, works to meet household needs, the buyer exercises his rights, in accordance with the provisions of the Civil Code. In addition, the Federal Law No. 2300-1 establishes guarantees. What does the Consumer Rights Act say ? The imposition of services is considered in Art. 16. It says that the terms of the agreement that infringe on the interests of the buyer, in comparison with the rules provided for by legal acts, are considered invalid. Losses caused by the imposition of services, Article 16 requires the seller (contractor, manufacturer) to compensate in full.
Bans
It is not allowed to impose a service on a consumer for a fee, or to impose obligations on a client that are not provided for by the norms. It is forbidden to condition the purchase of one product on the acquisition of another. All this is a violation of consumer rights. The imposition of services , among other things, may be carried out during the warranty period. Regulatory acts prohibit binding the satisfaction of the buyer’s requirements presented during the service periods with conditions not related to the defects of the goods. Often, warranty obligations are formulated so that the buyer is forced to contact only a specific company, otherwise he will be denied service. The seller is forbidden to carry out additional work, to provide services for a fee without the consent of the client. The buyer may refuse to pay for them. If the amount has already been paid, he has the right to demand a refund.
Responsibility
What threatens for the imposition of services? The Law "On Protection of Consumer Rights " indicates the possibility of bringing violators of norms to responsibility. In particular, administrative sanctions are provided. For inclusion in the agreement of conditions that violate the interests of the buyer, a fine is established. It is 1-2 thousand p. for entrepreneurs, and 10-20 thousand rubles. - for legal entities. The relevant provisions are contained in Art. 14.8 Administrative Code.
The timing
If there has been an imposition of services , the buyer can bring to administrative punishment the offender within a year from the date of the violation. The relevant provision is present in Art. 4.5 Code of Administrative Offenses (part 1). The imposition of services cannot be considered a continuing violation. It is considered completed at the time of conclusion of the agreement, which contains unacceptable conditions. If a fact of infringement of one’s interests is revealed, the buyer can go to court. It should be borne in mind that requirements, the amount of which is less than 1 million rubles, are not subject to duty. In addition, the buyer can contact the territorial division of Rospotrebnadzor.
Banking practice
More recently, in the credit sector, the imposition of services has been very common. In particular, citizens who took a loan could not repay their debt ahead of schedule without paying the so-called “fine”. In addition, additional interest was charged for maintaining the account. Currently, loan agreements are concluded subject to the signing of an insurance agreement. Can this be seen as the imposition of services ? It is worth noting that the opinions of experts on this issue differ.
Inadmissibility of concluding an insurance contract
Experts who are of the opinion that the signing of an additional agreement to credit violates the rights of consumers explain their position as follows. Regulatory acts provide for compulsory and voluntary insurance. Moreover, the former is allowed only in cases established by law. Repayment of obligations may be secured by pledge, forfeit, guarantee and other means. The latter, however, does not mean the possibility of inclusion in the specified list of the insurance contract. Some authorities explicitly prohibit this. In particular, the Omsk Regional Court in one of its definitions indicated the inadmissibility of linking the conclusion of a loan agreement by signing an insurance contract, establishing the right of a banking organization to demand early repayment of an obligation with interest, and also foreclosing property pledged as security for non-fulfillment of a related condition by a client . FAS of the Central District holds a similar position. The court indicates that if the client’s obligation to insure life is not established by law, then the corresponding condition cannot be included in the loan agreement.
Another opinion
A number of experts speak out that the inclusion of an additional insurance clause in the loan agreement is permissible. The main income of the debtor is his salary. Her receipt, in turn, depends on his state of health. Bank risk insurance , respectively, is associated with providing a loan repayment. This opinion was expressed in one of the cassation rulings by the St. Petersburg City Court. The admissibility of the inclusion of a compulsory insurance condition in a loan agreement is expressly provided for in the current instructions of the Central Bank. At the same time, in the process of calculating the loan, the banking organization is obliged to take into account the debtor's payments to third parties. These include, among other things, insurance premiums.
Additionally
Controversial situations also arise regarding the bank's requirement to conclude an insurance contract with a specific organization. Otherwise, a loan will be refused. The arguments that such a requirement violates the consumer’s right to freedom of choice of the parties to the agreement and leads to an increase in the amount of expenses, connects the purchase of one product with the purchase of another, the courts consider unreasonable. They explain their findings to the authorities as follows. To make a decision on granting a loan, the bank must be sure that when an insured event occurs, the organization will be able to compensate for the losses. If it is not there, then the credit structure cannot recognize the obligation as secured. A banking organization is interested in having the debtor insured in a solvent company.
Explanations
The Federal Antimonopoly Service of the Ural District indicated that the requirements of paragraph 2 of Article 16 of the Federal Law No. 2300-1 apply to situations where the product is sold by one person. Accordingly, the inclusion of a compulsory insurance condition is not prohibited. Later decisions indicated that such a requirement of the bank substantially limits the rights of the consumer, making their implementation dependent on the actions of third parties. Two services - insurance and lending - are independent of each other, and their imposition is not allowed. The fact that two persons enter into an agreement with a client does not have legal significance to comply with regulatory requirements. It does not follow from the content of article 16 that it does not apply in cases when additional services are provided by a third party who has no relation to the main contract.
Special situations
A different state of affairs is observed when the consumer had the opportunity to draw up a loan agreement without concluding an insurance contract. In an information letter from the EAC Presidium in paragraph 8, it is indicated that such a situation is permissible. In the example given in the document, when granting a loan, the bank was guided by the rules developed by it. In accordance with them, insurance was included in the list of measures to minimize the risk of loan default. However, the rules allowed the provision of credit and in the absence of an accompanying contract. However, in this case, an increased rate was established. The bank was able to prove that the difference between the tariffs is not discriminatory. Moreover, the decision of the credit institution on the issue of funds did not depend on the consent of the client to insure his life in favor of the bank. The loan agreement also included a condition that the amount of debt is reduced by the amount of compensation in the event of an accident. YOU confirmed that the difference between the rates was quite reasonable. In the application, the client chose the option of obtaining a loan with a lower rate, but with a prerequisite for insurance. Having studied the circumstances, the court concluded that there was no imposition of services.
Early repayment of a loan
As mentioned above, the practice of establishing “fines” for repayment of obligations before the deadline was previously widespread. It is currently nullified. Normative acts allow the client to repay the obligation ahead of schedule, unless otherwise provided by law and follows from the essence of the contract. Such an opportunity is provided for by Art. 810 GK. The legislation determines its implementation solely with the consent of the lender, without linking it with the need to pay a commission. According to Art. 393 of the Civil Code, the debtor's property may be levied in case of non-fulfillment or improper fulfillment of contractual conditions, that is, in case of delay. The actions of the entity ahead of schedule repayment of the obligation do not apply to violation of the agreement. Accordingly, they do not entail consequences in the form of the creditor having the right to present additional property claims and the debtor's obligations to satisfy them.