Limitation period in case of filing a mandatory pre-trial claim

In what cases is it sent?

There are several most typical situations in which the consumer has every right to file a claim under a paid services agreement. This includes:

Unjustified delays - undoubtedly, different circumstances may arise in life, so in some cases it is still possible to give a short delay for the performance of a certain service. However, if the other party to the transaction has begun to take advantage of this and regularly demands an extension of the deadline, then this is already a reason to write an official complaint.
Poor quality service provision is a case when the final result of the service provided turned out to be far from the consumer’s expectations. Provided that all details and nuances were discussed with the contractor in advance.
The service was not provided at all - in practice, cases often occur when the customer regularly delays the time for providing the service and ultimately does not complete it.

In all of the above cases, it is not at all necessary to immediately write an official appeal.

First, you can try to negotiate verbally. Some consumers succeed in this and the problem is resolved.

How to apply correctly?

According to the provisions of the Code of Civil Procedure of the Russian Federation, in a number of cases, before filing a claim, the pre-trial procedure for resolving a dispute must be followed. Such cases also include disputes related to the rights and interests of consumers.

Before complaining anywhere, including judicial authorities, the customer of the service must send a written pre-trial claim to the contractor.

The current legislation does not contain any requirements or rules for its preparation. However, the content of such a document should include the following information:

The “header” of the application is a standard section that reflects detailed information about the addressee and the applicant (name, address, full names of officials, contact details).
The title of the document is usually written briefly: “Claim”.
Content part – in this section the following information should be presented sequentially:
subject of the agreement;
obligations assumed by the performer;
a note that the consumer has fulfilled his obligations in full (transfer of advance payment, prepayment of 100%, etc.);
requirement for the second party to the transaction and the waiting period for a response;
references to the relevant legal provisions on which the consumer bases his claims.
At the end, the document is signed by the applicant and the date of its preparation is set. At the same time, you can additionally attach documents confirming the legitimacy of the requirements put forward by customers of the service (photo and video materials, results of an independent examination, bank statement confirming the transfer of prepayment, etc.).

We do not recommend completing the documents yourself. Save time - contact our lawyers by phone:

+7 (499) 938-90-37 Moscow+7 (812) 467-37-23 St. Petersburg

The standard pre-trial claim form itself can be downloaded from the Internet or ordered from a lawyer. The second option is preferable, since a competent specialist will be able to tell you which “strings” to pull in a particular case.

Procedure for filing a claim

The step-by-step procedure is as follows:

The counterparty, whose rights are violated by the actions or inaction of the other party to the transaction, writes a letter, which he calls a claim. It indicates violations of specific terms of the contract and the actions that the violator must take.
The violator of the conditions receives a claim document. Further, several options for the development of events are possible. The party to the agreement that received the claim may consider it justified or not. In addition, the letter may be ignored.
If the claim is deemed unfounded or no response has been received, the next step is to go to court in order to induce the counterparty who violated the terms of the transaction to fulfill the terms of the agreement properly and to induce them to pay penalties in the form of a penalty (fine, penalty), damages, interest for the use of other people's funds, etc.

What legal norms should you refer to when writing?

Particular attention should be paid to references to legislative norms. It is very important to include them in the text of your pre-trial claim, since its persuasiveness depends on this.

Thus, in the substantive part of the claim one can refer to the following norms of law:

Clause 1 art. 779 of the Civil Code of the Russian Federation – disclosure of the concept of concluding an agreement for the provision of paid services.
Article 309 of the Civil Code of the Russian Federation - it states that the parties to the transaction must properly fulfill their obligations.
Clause 1, Article 27 of the Federal Law of the Russian Federation “On ZPP” - it states that the contractor is obliged to perform the service exactly on time specified in the contract.
Clause 1 of Article 781 of the Civil Code of the Russian Federation and Part 1 of Article 37 of the Federal Law of the Russian Federation “On ZPP” - according to this norm, the customer must pay for services on time in accordance with the period specified in the contract. Here it can be noted that the consumer, for his part, fully complied with this requirement of the law.
Clause 1 of Article 307 of the Civil Code of the Russian Federation - this norm states that the creditor (customer of the service) has the right to demand from the debtor (performer) the fulfillment of his obligations.

Thus, the inclusion of references to legislative norms in the text of the pre-trial claim will make it clear to the addressee that the applicant is sufficiently savvy in legal matters and will not allow his rights to be violated.

When pre-trial (claim) dispute resolution procedure is mandatory

This order is required:

if you are going to apply to the arbitration court with a claim to recover money under an agreement, another transaction or as a result of unjust enrichment (part 5 of article 4 of the Arbitration Procedure Code of the Russian Federation);
you need to terminate or change the contract through the court (clause 2 of article 452 of the Civil Code of the Russian Federation);
in cases provided for by federal law or agreement, if you demand in an arbitration court (part 5 of article 4 of the Arbitration Procedure Code of the Russian Federation):

not money, but other property under contracts and other transactions. For example, a product from a supplier;
unjust enrichment in kind (Article 1104 of the Civil Code of the Russian Federation). For example, when you demand the return of a building that you transferred under a lease agreement that turned out to be unconcluded;
money, but not on the basis of a transaction and not as a result of unjust enrichment. For example, you, as the copyright holder, demand that the violator of exclusive rights compensate for losses or pay compensation (in this case, both parties must be legal entities and (or) individual entrepreneurs) (Clause 5.1 of Article 1252 of the Civil Code of the Russian Federation).

Regarding claims for compensation for damage to (non-contractual) property, judicial practice regarding the obligation to comply with the pre-trial (claim) procedure is ambiguous. Taking this into account, before filing a claim, we recommend that you follow this procedure;

in cases provided for by federal law, if you have an economic dispute arising from administrative and other public legal relations (part 5 of article 4 of the Arbitration Procedure Code of the Russian Federation). For example, pre-trial procedures may be provided for tax or customs disputes;
in cases provided for by federal law, if you apply to a court of general jurisdiction (clause 1, part 1, article 135 of the Code of Civil Procedure of the Russian Federation).

Is it necessary to comply with the claim procedure for a counterclaim?

A counterclaim is filed according to the general rules for filing claims (Part 2 of Article 132 of the Arbitration Procedure Code of the Russian Federation, Article 137 of the Code of Civil Procedure of the Russian Federation). This means that the pre-trial procedure for filing a counterclaim is mandatory in the same cases as for the initial claim. If you apply to an arbitration court, then, as a general rule, this procedure must be followed (clause 7, part 1, article 126 of the Arbitration Procedure Code of the Russian Federation). When applying to a court of general jurisdiction, it is optional, unless established by federal law (clause 3 of article 132 of the Code of Civil Procedure of the Russian Federation).

Is it necessary to follow the claim procedure when filing a recourse claim?

As a general rule, for a recourse claim, the claim procedure is not necessary if you apply to a court of general jurisdiction. However, such a procedure may be established by federal law (Article 132 of the Code of Civil Procedure of the Russian Federation). For example, if you file a claim against the cargo carrier (clause 1 of Article 797 of the Civil Code of the Russian Federation).

But the question of the need to comply with the claims procedure when applying to an arbitration court in practice raises difficulties. Based on the essence of recourse and the literal interpretation of Part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, the claim procedure when filing a recourse claim, as a general rule, does not need to be followed. The fact is that such a procedure is mandatory for monetary claims that arise from an agreement, other transactions or unjust enrichment. The regressive requirement arises differently. With recourse, a new, independent obligation appears in place of the one that arose from an agreement (another transaction) and was fulfilled.

However, some courts believe that the claim procedure is mandatory in some cases. For example, the court decided that recourse claims for the collection of insurance compensation are not among the exceptions for which the claim procedure is not provided (Part 5 of Article 4 of the Arbitration Procedure Code of the Russian Federation).

In this regard, we recommend filing a claim before filing any recourse claim with the arbitration court.

Presentation deadline

The time limit for filing a claim depends mainly on the nature of the claims being made. There are two possible options:

In relation to a service performed improperly, if deficiencies are detected, the customer has the right to file a claim within the warranty period or within a reasonable time (Part 2, Clause 3, Article 29 of the Federal Law of the Russian Federation “On ZPP”).
A “reasonable period” means a period of time not exceeding 2 years from the date of provision of the service.
Moreover, in this case, the consumer will need to prove that the deficiencies arose before the acceptance and payment for the service or for previously arising reasons (Clause 4, Article 29 of the Federal Law of the Russian Federation “On ZPP”).
If the service is provided in violation of the established deadlines, the law does not say exactly when the customer can file a pre-trial claim on this basis. It is understood that he will be able to do this immediately after the expiration of the period allotted under the contract for completing a specific task.

How can I send?

The legislation does not contain any requirements regarding the method of filing a pre-trial claim. This can be done in any way. The most important thing is that the customer of the service has real confirmation of the fact that the request was sent and reached the addressee.

The main options include:

Personal visit to the contractor’s office - you must first collect a package of papers and hand it over to an employee from the office or reception (depending on the size of the organization). In this case, it is necessary to require that the receiving party must put its signature and the date of its receipt on the second copy of the document.
Sending by mail - it is best to send it by registered mail to be absolutely sure that it will not get lost along the way. In addition, you can order a notification of delivery, which will be returned to the applicant after the claim falls into the hands of the service provider. In the future, this paper can be attached to the case as evidence in court that the plaintiff complied with the pre-trial procedure for resolving the dispute.
Transferring the application through a notary – this option is especially relevant for large organizations. Typically, in this case, the lawyer’s role is reduced not only to presenting the claim, but also to explaining the consequences that may await the service provider.
Other methods - for example, sending by fax, by e-mail, by filling out a feedback form on the website of the service provider. However, these options are not very reliable, since the latter will always be able to say that he did not receive anything. Moreover, it will be difficult to prove the opposite.

How to file a pre-trial claim?

Have you decided whether to file a claim? Fine. We'll tell you how to do this. First, you need to create the entire set of documents, including all the documents that you are going to attach to this claim.

Then you need to decide on the delivery method, usually there are only two:

Russian Post or other courier services . It must be sent by registered mail with notification and a description of the attachment. So, then in court, you will be able to confirm compliance with the claim procedure, even if the defendant says that you did not do this.
By hand . Those. directly to the main office of the counterparty, located at the legal address of the organization. Do not forget that in this case, you need to print out another copy of the claim so that the recipient of the claim will mark it as receipt. Otherwise, in court you will not be able to confirm that the claim was served and your entire case may fall apart.

Be sure to take the claim process seriously; it is often an important stage of the dispute that needs to be handled correctly.

Response time

The Federal Law of the Russian Federation “On PPP” does not say within what time frame a violator of the provisions of an agreement on the provision of paid services must respond to a received pre-trial claim. However, this legislation reflects specific time periods during which individual consumer requirements must be satisfied. The following options are possible:

Elimination of detected deficiencies in the service provided - the applicant sets a specific period at his own discretion. This information must be indicated in the claim.
Reduction of the contract price, reimbursement of expenses for independent elimination of the consequences of poor work, return of the full cost of services provided - for such requirements a period of 10 days is provided (Clause 1, Article 31 of the Federal Law of the Russian Federation “On ZPP”).
Free execution of the ordered service for the second time - the period for satisfying such a request corresponds to the period allotted for an urgent order. If a specific time interval is not established, then the number of days allocated for the provision of the relevant service under the initial contract is taken as a basis.

If the executor does not agree with the requirements put forward in the pre-trial appeal, then he has the right to send the applicant a reasoned refusal to satisfy specific requests.

A contractor who receives a complaint regarding the poor quality of the service provided should promptly respond to it. Otherwise, he will face a fine of 3% of the price of the service. Moreover, this penalty will have to be paid daily (Clause 5, Article 28 of the Federal Law of the Russian Federation “On ZPP”).

Additionally, it is worth noting that if the customer refuses to accept a service that was performed with violations, then the contractor will not be compensated for the expenses that he incurred during its provision (Clause 4, Article 28 of the Federal Law of the Russian Federation “On ZPP”).

What is an agency agreement? What is the procedure for concluding an outsourcing agreement, public offer or additional agreement? Why do we need an acceptance certificate for services rendered? All answers to your questions can be found in separate materials on our portal. Experts will also tell you how to terminate a contract, including unilaterally, send a letter of termination to the addressee and sign a contractual document between legal entities.