The courts decision satisfied the claim, and the company was obligated to hand over the television to the plaintiff.
Overturning the decision of the court of first instance and making a new decision to reject the claim, the appellate court, referring to the condition of the companys public offer on the sellers right to cancel the placed order if the goods are out of stock, indicated that the buyer was familiar with these conditions by posting them on website of the online store, and therefore the seller had no obligation to transfer the goods.
The Court of Cassation of General Jurisdiction agreed with the conclusions of the appellate court.
The Judicial Collegium for Civil Cases of the Supreme Court overturned the decisions of the courts of appeal and cassation and sent the case for a new appeal hearing, indicating the following.
Civil rights and obligations arise from contracts and other transactions provided for by law (subparagraph 1 of paragraph 1 of Article 8 of the Civil Code of the Russian Federation).
According to paragraph 1 of Article 420 of the Civil Code of the Russian Federation, a contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations.
By virtue of paragraph 1 of Article 432 of this code, an agreement is considered concluded if an agreement is reached between the parties in the form required in appropriate cases on all the essential terms of the agreement.
Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached.
An agreement is concluded by sending an offer (offer to conclude an agreement) by one of the parties and its acceptance (acceptance of the offer) by the other party (clause 2).
In accordance with paragraph 1 of Article 454 of the Civil Code of the Russian Federation, under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it.
According to paragraph 1 of Article 494 of the Civil Code of the Russian Federation, the offer of a product in its advertising, catalogs and descriptions of goods addressed to an indefinite number of persons is recognized as a public offer (paragraph 2 of Article 437), if it contains all the essential terms of the retail purchase and sale agreement.
By virtue of paragraph 2 of Article 497 of the Civil Code of the Russian Federation, a retail purchase and sale agreement can be concluded on the basis of familiarization of the buyer with the description of the goods proposed by the seller through catalogues, prospectuses, booklets, photographs, communications (television, postal, radio communications and others) or other means excluding the opportunity to directly familiarize the consumer with the product or a sample of the product when concluding such an agreement (remote method of selling goods).
A similar definition of the sale of goods remotely is given in paragraph 1 of Article 26.1 of the Law on the Protection of Consumer Rights.
In accordance with paragraph 12 of the Rules for the sale of goods under a retail purchase and sale agreement, approved by Decree of the Government of the Russian Federation of December 31, 2020 N 2463, when selling goods remotely, the seller is obliged to conclude a retail purchase and sale agreement with any person who has expressed an intention to purchase the goods on the terms of the offer.
According to paragraph 13 of these rules, a retail purchase and sale agreement is considered concluded from the moment the seller issues to the consumer a cash or sales receipt or other document confirming payment for the goods, or from the moment the seller receives a message from the consumer about the intention to conclude a retail purchase and sale agreement.
The offer posted on the companys website for the sale of a TV, addressed to an indefinite circle of persons, contained all the essential terms of the contract detailed information about the product, price, and therefore was a public offer.
V., having placed an order for the goods and paid its cost, accepted the offer, that is, a purchase and sale agreement was concluded between the parties, in connection with which the seller had an obligation to transfer the goods to the buyer.
The defendants arguments about the absence of the television set specified in the contract are not supported by objective evidence and do not indicate a loss of the possibility of fulfilling the contract, and the case materials do not contain information about the removal of such television sets from production.
Under such circumstances, the Judicial Collegium for Civil Cases of the Supreme Court recognized as erroneous the conclusions of the courts of appeal and cassation regarding the sellers right to unilaterally cancel the placed order, that is, in fact, to refuse to fulfill the contract for the sale of goods.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court dated April 4, 2023 N 49-KG22-28-K6.
5. The seller does not have the right to unilaterally change the price of the goods determined by the purchase and sale agreement concluded with the consumer, and force the consumer to enter into a new contract on other terms, including due to an increase in the price of the goods by the time of its delivery, or additional costs for the seller. for the execution of the contract, etc.
S. filed a lawsuit against the company (seller) for the protection of consumer rights, indicating that on May 21, 2021, a purchase and sale agreement for a car was concluded between the parties at a price of RUB 3,497,000. The contract did not provide for the possibility of revising the price of the car.
S. made an advance payment to the sellers account; the remaining part of the cost of the car, according to the terms of the contract, was to be paid at the time of transfer of the car to the buyer.
After the car arrived at the warehouse of the seller S., it was reported that the price of the car had increased and amounted to RUB 3,969,000. Since the seller refused to transfer the car at the price of the contract dated May 21, 2021, the plaintiff was forced to sign a sales contract on October 13, 2021 at a new price.
Resolving the dispute, the court of first instance concluded that there were grounds to satisfy the claim, indicating that all the necessary essential conditions were agreed upon by the parties in the agreement dated May 21, 2021, therefore, it was concluded on the terms defined therein and is subject to execution.
The appeal ruling overturned the decision of the first instance court, and a new decision was made in the case to dismiss the claim.
According to the court of appeal, between the parties, on October 13, 2021, another agreement for the purchase and sale of a car was concluded, which was executed, while S. was not deprived of the right to refuse its conclusion, insisting that the defendant fulfill his obligations under the agreement dated May 21, 2021.
The Court of Cassation of General Jurisdiction left the appeal ruling unchanged.
The Judicial Collegium for Civil Cases of the Supreme Court overturned the decisions of the courts of appeal and cassation and sent the case for a new appeal hearing on the following grounds.
Based on the provisions of Article 310 of the Civil Code of the Russian Federation, in the case where for at least one of the parties the obligation is not related to entrepreneurial activity, a unilateral change of the obligation by a person carrying out entrepreneurial activity is possible only by virtue of the law.
Based on paragraph 4 of Article 421 of the Civil Code of the Russian Federation, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (Article 422). In cases where the condition of the contract is provided for by a norm that is applied to the extent that the agreement of the parties does not establish otherwise (dispositive norm), the parties may, by their agreement, exclude its application or establish a condition different from that provided for in it. In the absence of such an agreement, the terms of the contract are determined by a dispositive norm.
According to paragraph 2 of Article 424 of the Civil Code of the Russian Federation, a change in price after the conclusion of an agreement is permitted in cases and on the conditions provided for by the agreement, the law or in the manner prescribed by law.
By virtue of paragraph 1 of Article 485 of the Civil Code of the Russian Federation, the buyer is obliged to pay for the goods at the price stipulated by the purchase and sale agreement, or, if it is not provided for by the contract and cannot be determined based on its terms, at the price determined in accordance with paragraph 3 of Article 424 of this Code, as well as perform, at your own expense, actions that, in accordance with the law, other legal acts, agreements or usually required requirements, are necessary to make the payment.
If the purchase and sale agreement stipulates that the price of the goods is subject to change depending on the indicators determining the price of the goods (cost, expenses, etc.), but the method for revising the price is not determined, the price is determined based on the ratio of these indicators at the time of conclusion contract and at the time of transfer of goods (clause 3 of Article 485 of the Civil Code of the Russian Federation).
Thus, from the content of the above rules of law in their interrelation it follows that, as a general rule, revision of the price of a product depending on changes in the cost of its constituent components is permitted in cases where the purchase and sale agreement provides for such a possibility.
In accordance with paragraph 1 of Article 16 of the Law on the Protection of Consumer Rights, unacceptable terms of the contract that infringe on the rights of the consumer are terms that violate the rules established by international treaties of the Russian Federation, this law, laws and other regulatory legal acts of the Russian Federation adopted in accordance with them, regulating relations in the field of consumer rights protection. Inadmissible terms of the contract that infringe on the rights of the consumer are void.
If the inclusion of conditions in the contract that infringe the rights of the consumer resulted in losses to the consumer, they are subject to compensation by the seller (manufacturer, performer, importer, owner of the aggregator) in full in accordance with Article 13 of the same law.
Paragraph 2 of Article 16 of the Law on the Protection of Consumer Rights establishes a list of unacceptable terms of the contract that infringe on the rights of the consumer, which, in particular, include: conditions granting the seller (manufacturer, performer, authorized organization or authorized individual entrepreneur, importer, owner of the aggregator) the right to unilateral refusal to fulfill an obligation or a unilateral change in the terms of the obligation (subject, price, term and other conditions agreed with the consumer), except for cases where the law or other regulatory legal act of the Russian Federation provides for the possibility of granting such a right by the contract (subparagraph 1).
The court of first instance found that the delivery of the car under the terms of the contract dated May 21, 2021 was not carried out; the defendant unilaterally refused to fulfill obligations through inaction, which caused losses to the plaintiff.
In canceling the court decision and refusing to satisfy the claim, the appellate court did not express any judgment about whether the contract dated May 21, 2021 was valid, whether it was executed by the seller, whether the rights of the plaintiff as a consumer were violated, given that, under the terms of the said agreement, the price of the car was not subject to change with an increase in the rates of tax, customs and other payments, the cost of transport and/or other expenses, as well as an increase in the maximum retail price of the car.
In support of the claims, S. indicated that on October 13, 2021, after the delivery of the car under the terms of the original contract was not carried out, he was forced to enter into a purchase and sale agreement with the seller for the car with an increased price.
These arguments of the plaintiff were not assessed by the court, in violation of the requirements of Article 198 of the Civil Procedure Code of the Russian Federation <6>, and there are no judgments on them in the judicial act.
<6> Hereinafter the Code of Civil Procedure of the Russian Federation.
Under such circumstances, the Judicial Collegium for Civil Cases of the Supreme Court recognized as erroneous the conclusions of the courts of appeal and cassation regarding the imposition on the buyer of the consequences of an increase in the cost of the goods.
Determination of the Judicial Collegium for Civil Cases of the Supreme Court dated May 30, 2023 N 75-KG23-3-K3.
6. The buyer has the right to present a claim to the seller regarding defects in goods for which no warranty or expiration dates have been established, if these defects are discovered within two years from the date of transfer of the goods to him and longer periods are not established by law or contract
D. and S. filed a lawsuit against the company (seller) for the protection of consumer rights, indicating that during the operation of the apartment that they purchased from the defendant under the purchase and sale agreement dated June 6, 2016, shortcomings in the construction work were identified. installation and finishing works.
In resolving the dispute and partially satisfying the claims, the court of first instance proceeded from the fact that during the five-year warranty period established by the Law on the Protection of Consumer Rights, defects were revealed in the apartment transferred to the plaintiffs, which were formed as a result of violations committed during construction work, then there arose before the transfer of the apartment to consumers.
Taking into account the foregoing, the court came to the conclusion to recover from the defendant in favor of the plaintiffs in equal shares the cost of eliminating the defects, determined by a forensic examination, as well as compensation for moral damages and a fine for failure to voluntarily meet consumer requirements.
The appellate court agreed with the conclusions of the first instance court, additionally pointing out that the choice of the person obligated at the consumers request in this case belongs to the consumer, and therefore recognized the complaints argument that the five-year warranty period applicable to construction work was not based on the law. should be used in relation to the apartment developer.