Samples of claims under a service agreement. Refund of money for the service if the service was not provided, the deadline for the provision of services was violated, information about the service was not provided, the deadline for eliminating the defect was violated

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Published: 11/09/2018

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Since the purchase and sale is a transaction of a civil nature, it is subject to all the rules specified in the Civil Code of the Russian Federation. Such a contract can be terminated for any reason if the parties have reached such a decision by mutual agreement.

Terms for the return of funds under the purchase and sale agreement
Features of transaction termination Filing a claim
Documents attached to the claim

If only one party expressed a desire to terminate the relationship, then in this case the termination of the contract must occur in accordance with the rules specified in Art. 450 Civil Code of the Russian Federation. Thus, a purchase and sale agreement, at the request of one of the parties to the transaction, can be terminated if the following grounds exist (Article 450 of the Civil Code of the Russian Federation):

material violation of the terms of the contract by the other party;
unilateral refusal to fulfill the contract by one of the parties , if such is provided for by the Civil Code of the Russian Federation, other laws, or the terms of the contract.

Material breaches are understood to mean those breaches that caused damage to the other party or deprived him of what he should have received in accordance with the contract.

Thus, the buyer may demand termination of the contract if the following circumstances exist:

the seller fails to fulfill his obligation to transfer the thing (goods) that serves as the subject of the transaction;
there is no accompanying documentation for the goods , the availability of which is provided for by the contract;
a defect in the product or non-compliance with the declared characteristics is detected;
violation of deal deadlines;
lack of necessary components.

The seller also has the right to demand termination of the purchase and sale agreement in the following cases:

the buyer refuses to accept the goods under the contract without justifying the reason;
the seller did not receive funds for the completed transaction;
the buyer requires the seller to fulfill conditions that were not agreed upon between the parties.

If the transaction is terminated forcibly, then the party initiating the termination must send a corresponding written demand to the other party (claim).

Deposit and advance payment - what is the difference?

When considering the issue of returning the advance to the customer, it is worth distinguishing between the concepts of deposit and advance.
According to Part 1 of Art. 380 of the Civil Code of the Russian Federation, the deposit is a monetary security guarantee for the fulfillment of contractual relationships. This means that if the customer fails to fulfill his obligations, the deposit amount will not be returned to him. If the initiator of termination is the executor, the deposit will have to be returned, and as a general rule, the amount of the refunded deposit is doubled. A larger amount of the refundable deposit may be provided for by the provisions of the concluded agreement. An agreement establishing the amount of the deposit and the procedure for its transfer from one party to the other must be concluded in writing. The legislator sets a restriction on the method of securing the deposit: payment can only be made in monetary terms, i.e., securities and things cannot be transferred to the executor.

The current Civil Code of the Russian Federation does not contain a direct definition of the concept of advance payment; therefore, in practice, a general non-normative definition is used, characterizing it as an advance payment for services provided to the customer by the contractor. As a rule, an advance is issued for the purpose of partially covering by the contractor the costs that he will incur in fulfilling his part of the terms of the contract, and does not have the status of a guarantee obligation.

In accordance with Part 3 of Art. 380 of the Civil Code of the Russian Federation, funds transferred by the customer to the contractor in the absence of a written agreement on the procedure and conditions for transferring money cannot be qualified as a deposit and are therefore recognized as an advance. If for any reason the transaction does not take place (except when the contract expressly states otherwise), the advance payment must be returned to the customer in full.

The lack of a clear legislative distinction between the concepts of deposit and advance is the reason that they are often confused with each other.

Grounds for termination of the contract

Provisions of Art. 450 of the Civil Code of the Russian Federation establishes the following grounds for termination of the contract:

Agreement of the parties (Part 1).
A court decision made at the initiative of one of the parties:
in other cases (clause 2, part 2), for example, if the contractor fails to fulfill its obligations in a timely manner or violates the deadlines established by the contract (part 2 of article 715 of the Civil Code of the Russian Federation), failure to perform the work properly and eliminate the shortcomings indicated by the customer (part 3 Article 715 of the Civil Code of the Russian Federation).

Regardless of the basis on which the contract was terminated, the parties must fulfill their obligations, if any. If, at the conclusion of the agreement, one of the parties transferred a certain amount to the other as an advance, the termination of contractual obligations entails the need to transfer the money to their owner.

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Depending on the circumstances in a particular situation, the procedure for mutual settlements between the parties may vary. The main criterion that determines the scope of the rights and obligations of the customer and the contractor is the amount of work that the latter managed to complete at the time of termination of the contract.

The procedure for returning the prepayment upon termination of the contract before the provision of services

It requires:

list the customer’s obligations to repay expenses incurred during preparation for the execution of the terms of the contract in the event that the previously listed advance does not cover them completely;
determine the obligations of the contractor to return the unused advance or part thereof in the event that he has already spent part of the money in the course of fulfilling his duties;
indicate (if necessary) the repayment of the parties' obligations or part thereof by offset on the basis of Art.

Refund of the advance upon termination of the contract If the conflict cannot be resolved through negotiations, the party that suffered losses has the right to file a claim in court, sent to the location of the defendant.

Prepayment refund for services If the seller refuses to fulfill the request left by the buyer, he is obliged by law to return the advance payment for the goods to the client. To do this, the buyer must make a claim in writing, indicating the name of the individual entrepreneur or retail outlet, the name of the item being purchased, the amount of the advance payment, and the timing of the order.

In addition, if the seller, who has received the advance payment amount, does not fulfill the obligation to transfer the goods within the prescribed period, the buyer has the right to demand the transfer of the paid goods or the return of the advance payment amount for the goods not transferred by the seller *(2). We entered into an agreement for the provision of services (of the presenter). An advance was paid. We decided to terminate the contract. The contract states that upon termination of the contract, the advance payment may be withheld by the contractor.

Refund if the contract is not concluded

Refund of advance payment in court

If the parties terminated the contract, but were unable to independently determine the procedure for mutual settlements regarding the advance payment, the dispute will have to be resolved in court. To do this, the customer must perform the following sequence of actions:

Draw up a pre-trial claim and submit it to the counterparty. It requires:
- list the requirements put forward and provide their justification;
outline the consequences that the contractor will face if he refuses to return the advance, including the possibility of the customer going to court to demand the collection of unpaid funds.

It is worth preparing 2 copies of the document, one of which should be handed to the contractor, and the second, with the signature of the person who received the claim, kept as evidence of the fact of its transfer to the addressee or his representative.

If the contractor refuses to fulfill the requirements specified in the complaint or ignores them, go to court. The statement of claim must be sent to the court located at the location of the defendant. The document must clearly state the claims and provide the grounds for satisfying them. The claim should be accompanied by copies of the pre-trial claim sent to the debtor and his refusal to fulfill the stated requirements (if any).

Refund of prepayment upon termination of the contract

If it is not possible to resolve the conflict through negotiations, the party that suffered losses has the right to apply to the court with a statement of claim sent to the location of the defendant. The claim is drawn up indicating the name of the judicial authority; information about the participants in the case; the grounds for the plaintiff’s claims, as well as evidence supporting them; information about preliminary proceedings.

The essence of the case is described in detail with the described violations of the rights and legitimate interests of the parties and a list of documents attached to the statement of claim, as well as their copies. How to return the advance upon termination of the contract? Let's figure it out.

If the customer makes a claim for reimbursement of the amount spent, the contractor must prove that he took all necessary actions to fulfill the terms of the contract. In practice, the contract is usually terminated when the customer has already paid the advance and the contractor has already completed part of the work (the quality of this work is often the reason for termination of the contract). As in the cases indicated above, the customer does not have the right to demand advance payment in full. If the contractor is to blame for the termination of the contract, then the customer has the right to demand, in addition to the return of the advance payment, payment of a penalty for violation of contractual obligations. In this case, the contractor is obliged to pay all amounts previously received under the contract minus the cost of the work actually performed and documented by the acceptance certificates of the work performed.

The deadline for repayment of the advance must be met. Judicial practice Situations related to the return of advance amounts often lead to conflicts between participants. Each participant in the transaction defends their rights, which is quite natural.

Features of the advance refund procedure

If the parties to the agreement have reached a consensus, all that remains is to complete the transfer of funds and properly formalize the procedure. It is important to take into account that the procedure for returning the advance payment transferred at the conclusion of the contract has the following features:

Refunds are made in the same form (cash or non-cash) in which they were received.
If there are no provisions in the primary agreement governing the procedure for transferring money, the parties will need to draw up an additional document defining this procedure and timing of the transfer, as well as the exact amount to be paid.
In the event that the request for the return of the advance was satisfied in court, the party on whom the court imposed the obligation to pay the money must fulfill its obligations in accordance with the provisions of the court decision. In case of refusal to voluntarily repay the debt, bailiffs are involved in the case and a writ of execution is drawn up, on the basis of which money is forcibly withheld from the debtor.

Agreement on termination of the contract and return of the advance payment

To ensure that after the termination of cooperation as a result of termination of the contract, neither its parties nor the tax authorities have any questions or discrepancies, it is necessary to draw up and sign an agreement defining the procedure for terminating the contract and returning the advance payment.

It requires:

list the customer’s obligations to repay expenses incurred during preparation for the execution of the terms of the contract in the event that the previously listed advance does not cover them completely;
determine the obligations of the contractor to return the unused advance or part thereof in the event that he has already spent part of the money in the course of fulfilling his duties;
indicate (if necessary) the repayment of the parties' obligations or part thereof by offset on the basis of Art. 410 of the Civil Code of the Russian Federation, as well as determine the procedure for transferring to the customer the remaining part of the unpaid advance or reimbursing the contractor for unpaid expenses.

Refund of advance upon termination of contract

But at the same time, “the deposit is intended to ensure performance and is not returned in the event of a unilateral refusal of the agreement, “the advance does not guarantee the security of obligations, and accordingly can be returned. We are told about this in Articles 380 - 381 of the Civil Code of the Russian Federation, which, among other things, establish the consequences of termination and failure to fulfill an obligation. Accordingly, the question immediately arises whether the deposit is applicable in this situation.

The answer follows from Article 782 of the same Civil Code of the Russian Federation, which establishes the right to unilaterally withdraw from the contract, but with a small condition: in the event of a refusal by the customer, the contractor will be compensated for the actual expenses incurred. These expenses must be documented, otherwise it is impossible to determine their real amount. Accordingly, the deposited amount should be regarded not as a deposit, but as an advance under the contract.

Terms of refund upon termination of the contract

If the provisions of the agreement concluded between the parties determine the procedure and terms for the return of funds received as an advance, then when making mutual settlements, the customer and the contractor must be guided by them. If the contract does not contain such instructions, when determining the deadline for the return of money, it is necessary to comply with the requirements of the current civil legislation.

According to paragraph 2 of Art. 314 of the Civil Code of the Russian Federation, if the deadline for fulfilling an existing obligation has not been established and the agreement does not contain conditions that could allow the parties to independently determine it, the obligation must be fulfilled within 7 days from the date of presentation of the demand for fulfillment.

Terms for the return of funds under the purchase and sale agreement

If the transaction is terminated, the party acting as the buyer has the right to receive back the full amount of money transferred to the seller. If the consumer makes a demand not for the exchange of goods or for their repair, but for the return of the full cost in accordance with the purchase and sale agreement, then the seller is obliged to return the agreed amount within 10 days from the date of receipt of such a demand from the buyer (Article 22 of Law No. 2300 -1).

Can the advance received be considered unjust enrichment of the customer?

Paragraph text 2 hours 4 tbsp. 453 of the Civil Code of the Russian Federation indicates that the rules on obligations due to unjust enrichment apply to the relations of the parties to an agreement terminated after one of the parties has fulfilled its obligation (or part of it). The only exceptions can be situations in which the agreement concluded by the parties stipulates otherwise.

Thus, depending on the presence or absence of a clause in the agreement on the procedure for returning the advance upon termination of the contract, the funds to be transferred may be qualified differently. The position of the Supreme Arbitration Court of the Russian Federation, set out in Resolution No. 1123/13 dated November 5, 2013, is as follows: if at the stage of concluding an agreement the parties agreed that the contractor would return the advance amount received by him upon termination of the contract, this amount cannot be qualified as unjust enrichment - in In this case, the money is transferred to its owner on the basis of an existing agreement. A court decision on the return of funds received as a result of unjust enrichment can be made only if the parties did not agree on the return of the advance at the conclusion of the contract.

***

So, the advance payment transferred by the customer to the contractor at the stage of concluding the contract is subject to return only if the latter does not incur any expenses associated with the implementation of activities aimed at fulfilling his obligations. If he has already spent the funds received (purchased materials, purchased tools, paid for transportation and other targeted expenses), the amount to be returned is reduced by the amount of expenses incurred by him. If the amount of his expenses exceeded the amount of the advance, he has the right not only not to return the funds received, but also to demand from the customer a full reimbursement of the costs incurred. As a rule, such issues have to be resolved in court, so the contractor should collect evidence confirming the fact of the intended use of funds.

How to obtain a refund of the advance upon termination of the service agreement?

According to the Civil Code of the Russian Federation, if the deadline for fulfilling an existing obligation has not been established and the agreement does not contain conditions that could allow the parties to independently determine it, the obligation must be fulfilled within 7 days from the date of presentation of the demand for fulfillment. Can the advance received be considered unjust enrichment of the customer? Paragraph text

The Civil Code of the Russian Federation indicates that the rules on obligations due to unjust enrichment apply to the relations of the parties to an agreement terminated after one of the parties has fulfilled its obligation (or part of it). The only exceptions can be situations in which the agreement concluded by the parties stipulates otherwise.