For buyers who encounter unscrupulous sellers when purchasing goods or providing services, filing a claim in court to protect consumer rights becomes the only way to solve the problem.
After all, not all organizations agree to resolve the conflict peacefully. Moreover, various tricks are invented and the buyer is left with nothing.
However, to win a case in court, it is necessary not only to competently argue your position. It is necessary to correctly formulate a list of demands in the claim. After all, the law gives the buyer the right to choose.
Rules for preparing a claim for consumer protection
First of all, it is recommended to carefully study the law on consumer protection. In addition, the specifics of trade in certain types of goods are regulated by government regulations. For example, this applies to technically complex products.
The application itself must specify not only the defect itself, but also the circumstances under which it appeared. After all, the cause may also be improper use of the product. Then the claim will most likely be denied.
Provided that at the pre-trial stage the seller offers to conduct a quality check, you should not refuse it. Otherwise, it will be extremely difficult to collect a fine from the store for refusing to solve the problem voluntarily.
When the goods were purchased on credit, you need to obtain a certificate from the bank regarding the interest paid. It is also allowed to insist on their recovery in a statement of claim.
Who has the right to file a claim?
Part 1 of Article 3 of the Civil Procedure Code of the Russian Federation establishes the right of citizens to file a claim to protect their rights.
Any citizen whose rights and interests are violated has the right to go to court.
In accordance with Part 1 of Article 4 of the Code of Civil Procedure of the Russian Federation, upon the application of a person whose rights have been violated, a civil case is initiated.
From these provisions it follows:
- a statement of claim can only be filed by the person whose rights are violated or his legal representative. You cannot file a lawsuit to protect the rights of a neighbor, even if his interests are objectively violated;
- only persons authorized by law, most often officials, have the right to independently initiate a process to protect the rights of a third-party citizen. For example, the prosecutor has such powers.
Claim procedure
A justified consumer complaint about a low-quality product can avoid litigation. It is extremely important not only to prepare it correctly, but also to hand it over to the manufacturer and seller. The structure of the appeal itself is quite standard.
The introductory part briefly describes the history of the acquisition. Reference is made to the full name of the product and its other distinctive features. The price must also be mentioned.
The following outlines the essence of the violated rights of a citizen as a buyer. Signs of defects and details of their manifestation are indicated.
Finally the transition comes to requests. They must be supported by reference to legislation.
The composition of the applications is also important. The claim may be accompanied by the most low-quality item. When it is physically impossible to deliver it, photographs are taken. Video recording would also be suitable.
Provided that the claim is sent by mail, an inventory of the attachment is made. The store address on the envelope must match the one indicated in the documents.
What documents will be required
In order for the court to accept the claim for consideration, it is necessary to prepare certain documents:
- copies of claims must be provided to each participant in the process;
- if the amount of the claim is more than one million rubles, you need to pay a state fee and provide a receipt;
- In certain cases, a pre-trial dispute resolution procedure is mandatory. Then you need to provide correspondence with the defendant and government authorities;
- each participant in the process must also be provided with copies of the calculation of the amount of the claim;
- confirmation of the circumstances of the case: contract, checks, examination results;
- if a representative acts on behalf of the plaintiff, it is necessary to provide the court with a power of attorney.
Watch the video. How to win a lawsuit against a store?
Types of claims in consumer protection cases
As a hint, below is a classification of existing claims. Using it, you can choose the right option for your situation. Moreover, different requirements can be combined.
Appeals to court are due to various circumstances. Therefore, the requirements may differ in each specific case. The specificity of the product also plays a role.
Here are the main problems that buyers are trying to solve by filing claims. Let us repeat that it is permissible to combine different requests to the court, but arising from one purchase.
Collection of money for goods
Most often, the demand for a refund for the goods is inextricably linked with the termination of the concluded sales contract. The amount that was paid for the goods of inadequate quality is collected. Confirmation of the amount of claims is a check or receipt.
Sometimes, when satisfying appeals, courts often also oblige the citizen to return the defective item to the seller.
There are numerous examples where plaintiffs do not ask to be reimbursed for the entire purchase price. After all, one of the rights is to reduce the price. Often, this happens when the defect is minor and does not interfere with the use of the property for its intended purpose.
Compensation for losses
They are different in nature. Direct damage is caused by a defective product to health, life, or property. Let's say there was a fire in the apartment due to defects in household appliances.
Correction of defects in a purchase at one’s own expense can also be considered a type of loss. Then the costs incurred are recovered from the manufacturer or trade organization.
Finally, when a delay in the transfer of goods, work (services) forces a citizen to make additional expenses. Their amount is also compensated.
Here's a common situation. Due to the delay in delivery of the house under the DDU, the future owners of the apartment temporarily rent other housing. Then the rent can be collected from the developer.
Application of penalties
Trade offenses can be divided into several categories. Accordingly, the liability measures for the second party are also different.
Thus, financial consequences are established for violation of the deadlines for the transfer of goods or completion of work.
In particular, according to paragraph 5 of Art. 28 of the Federal Law “On ZPP” for violation of the deadline for the production of work or provision of services, the contractor pays a penalty in the amount of 3% of the cost for each day or hour of delay. Separate penalties apply for delays incurred in eliminating deficiencies.
Finally, paragraph 5 of Art. 13 of the Federal Law “On ZPP” establishes a separate fine for refusal to satisfy the motivated demands of a citizen on a voluntary basis.
Sanctions for performers of works and services are also provided for in other documents. This applies to laws on compulsory motor liability insurance and shared-equity housing construction.
Elimination of defects
Such demands are not often made, but they are still stated in the claim. After all, there are buyers who need something every day. Therefore, there is simply no time to wait for the money to be collected.
When making a decision in favor of the consumer, the court determines the time frame for correcting the defects. Violation of them is fraught with additional sanctions.
When drawing up a claim, you must indicate what kind of defect there is in the thing. It would also be useful to describe the obstacles that exist in eliminating it.
Compensation for moral damage
This right of the buyer is enshrined in Art. 15 Federal Law “On ZPP”. Poor quality goods or poor service in a store a priori allow you to recover moral damages under consumer protection .
Accordingly, the plaintiff is not required to prove its existence. The amount of desired compensation is independently assessed. Another thing is that the court has the right to correct it in the decision from the position of adequacy.
The moral component is an independent requirement. It is subject to satisfaction regardless of property damage and losses caused.
Which court is it filed in?
The rules for choosing a court where the consumer intends to defend his interests are spelled out in the Civil Procedure Code of the Russian Federation and in Article 17 of the Civil Procedure Code. Consumer claims are heard by courts of general jurisdiction.
The right to choose the location of the court belongs entirely to the consumer himself, that is, there is alternative jurisdiction for such cases.
Which court hears consumer protection claims?
- The judicial authority at the place of permanent residence or temporary registration of the applicant;
- The court at the place where goods were purchased or services were concluded, at the place where the terms of the contract were fulfilled.
- The judicial authority at the registration address of the organization or at the place of residence of the individual entrepreneur.
If the defendant organization is large and the place of purchase of goods or provision of services is located far from the legal address of the main office, it is allowed to file a claim at the location of its branch or representative office where the services were provided.
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Many organizations try to circumvent the rules of alternative jurisdiction using simple tricks. To do this, the contract concluded with the consumer specifies a specific judicial authority to which the buyer must contact in the event of a disagreement. However, such courts may be located very far from the consumer’s place of residence, which is why he decides not to apply for protection of his rights, since this will entail a significant waste of time and money.
The clause in the contract about a specific judicial body in the contract is illegal. It is enough to write a claim at the place of your permanent residence and additionally include in it the question of challenging this provision and recognizing it as illegal.
Judicial practice on consumer claims
Since buyers’ claims contain several demands at once, the courts approach the study of the situation comprehensively. First of all, the reasons for the defects that the product has are analyzed. In some cases, it is impossible to do without ordering a separate examination.
The pre-trial procedure for resolving the dispute is also checked - the direction of the claim. After all, the final financial obligations of the seller depend on this.
Additional forced expenses of the consumer are analyzed separately. These include interest to the bank (when the goods were purchased on credit), examination costs. Postage costs are also subject to collection.
Remote purchase of goods
The Podolsk City Court of the Moscow Region considered a citizen's claim against an individual entrepreneur for termination of a contract, recovery of losses, penalties and moral damages. The appeal was motivated as follows.
The plaintiff ordered a set of upholstered furniture from the defendant according to the samples specified in the catalog. After delivery, the buyer began to insist that he was not satisfied with the mattresses. However, it was found that they were of adequate quality.
In satisfying the claim, the court proceeded from the fact that, under Art. 26.1 of the Federal Law “On ZPP” and by virtue of the contract, the buyer has the right to return the purchased product within 7 days from the date of its transfer. The citizen complied with these deadlines.
Therefore, by the decision of August 20, 2019 in case No. 2-3510/2019, the buyer’s requirements were satisfied. The cost of the goods and remaining fabric, as well as delivery costs, were recovered. Separately, a fine was awarded for refusal to satisfy the claim, moral damages, as well as damages expressed in postal costs.
Unproven defect
The essence of the dispute, which was considered by the Sterlitamak City Court of the Republic of Bashkortostan, was as follows. A citizen purchased motor oil for a car at a service station. After filling it, the engine failed.
Therefore, the plaintiff asked to terminate the contract and recover the cost of oil and engine repair costs from the workshop. Separately, there were demands for reimbursement of the cost of the examination and a fine for late satisfaction of the claim.
During the hearing of the case, an auto technical examination was appointed. Her findings confirmed that the defects in the engine are not related to oil. As a result, by decision dated June 20, 2019 in case No. 2-11394/2018, the claim was rejected in full.
Buyer misconduct
The conflict situation that the Central District Court of Tolyatti dealt with was related to a low-quality smartphone. Among other requests, there was also a fine of 50% for refusal to satisfy demands voluntarily.
However, the court did not cooperate with the buyer. The whole point is that the owner of the equipment avoided checking the quality of the goods proposed by the defendant. Instead, she commissioned an independent study, the results of which became known only during the trial.
As a result, by decision dated April 12, 2019 in case No. 2-1006/2019, the claim for the recovery of a fine was rejected. At the same time, the court ordered the plaintiff to return the low-quality phone at the request of the seller.
Pre-trial dispute resolution
Before going to court for the protection of consumer rights, measures should be taken to resolve the dispute out of court. To do this, first of all, you need to go to the seller. If after purchase significant defects of the product are identified, you should return it back to the store. For this purpose, a claim is written. It is a free-form document in which you must indicate the detected defects and your requirements to the implementer.
This is important to know: Complaint under consumer protection law
As a rule, sellers value their reputation and try to resolve the conflict before it goes beyond the store. However, if such an appeal does not bring the expected results, you can file a complaint with Rospotrebnadzor. This is a special body empowered to consider cases of this kind.
The paper is similarly compiled in free form. The main thing is to indicate in it:
- data of both parties;
- circumstances of the purchase;
- what exactly is the violation of obligations on the part of the seller;
- whether attempts were made to resolve the dispute with the seller of the goods, and how they ended;
- client requirements;
- date of document preparation and signature.
When a dispute arises between the parties as to who is to blame for the defect, the seller conducts an examination. The purpose of this procedure is to determine the cause of the breakdown. If it shows that the buyer himself is to blame for the appearance of shortcomings, the latter will have to compensate the store for the funds spent on such a procedure. At the same time, the consumer has the right to conduct a parallel independent examination if he doubts the objectivity of the one organized by the seller.
Documentation of all examinations should be attached to the claim along with receipts, receipts or other documents that confirm the purchase. If this method cannot help, there is always an extreme, but most effective option - to initiate legal proceedings.
