Exchange of goods of inadequate quality: procedure, assistance of a lawyer

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Published: 10/05/2018

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First of all, relations between buyers and sellers are regulated by the Law of the Russian Federation of July 2, 1992 No. 2300-1 “On the Protection of Consumer Rights.”

Features of replacing goods of inadequate quality
Procedure for filing a complaint by a consumer
Methods for filing a claim
Terms of consideration

In addition to Law No. 2300-1, the following regulations are taken into account:

Civil Code of the Russian Federation (Part 2) - its provisions are aimed at protecting buyers who are faced with failure to fulfill the seller’s obligations to sell quality goods;
Order of the MAP of the Russian Federation dated May 20, 1998 No. 160 is an addition to the Law “On the Protection of Consumer Rights”.

If, after making a purchase, the consumer discovers defects in the product, then, on the basis of clause 1 of Art. 18 of Law No. 2300-1 has the right to exchange a defective product for a quality product, demand elimination of defects, a discount, or a refund of money spent.

An exchange can be made for a similar product of the same brand, as well as for a product from another manufacturer. In the second case, the purchase price will be recalculated.

Purchase of goods

Legal entities conduct financial settlements with each other using non-cash payments. The purchase occurs by concluding contracts for the sale or delivery of goods. Payment under the agreement is made to the settlement accounts of sellers (suppliers). In most cases, only after prepayment or full payment the buyer receives the goods. This is the main problem, because the buyer cannot always see the product with his own eyes. Of course, before purchasing, you can choose the product you need and familiarize yourself with its characteristics and properties. However, if we are talking about purchasing more than one unit of goods, the seller may ship not the specifically selected item, but another from this batch of goods. As a result, there is a risk of receiving a low-quality product.

Since contractual legal relations of legal entities are regulated by civil law (Civil Code of the Russian Federation), the return of goods will occur in accordance with the norms of civil law. If a written agreement has not been drawn up, then the norms of the Civil Code of the Russian Federation are also taken into account.

Important
When returning goods by an individual, the provisions of the Law “On Protection of Consumer Rights” are applied. This law does not apply to legal entities.

Is it useful to know how to write a letter of guarantee for payment?

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The consumer has the right to demand that the product be replaced with another if the purchase is found to have defects. Replacement of goods of poor quality is carried out in accordance with the law: the conditions, procedure and period for replacing low-quality goods, including technically complex ones, are established by law. If the seller does not comply with the requirement to replace the defective product, the consumer has the right to go to court to protect the violated rights.

In the article we will look at the legal aspects of replacing a product (the concept of “replacement” is used in relation to a product with defects, and the concept of “exchange” is used in relation to a quality product).

It is important to define the concept of “deficiency” of a product as a basis for replacement. According to the Law on the Protection of Consumer Rights, a defect in a product is a non-compliance of a product either with the mandatory requirements provided for by law or in the manner established by it, or with the terms of the contract (in their absence or incompleteness of the conditions usually imposed on the requirements), or with the purposes for which a product of this kind is usually used, or the purposes of which the seller (performer) was informed by the consumer when concluding the contract, or the sample and (or) description when selling goods according to the sample and (or) description.

The procedure and conditions for replacing goods of inadequate quality are established in the Law on the Protection of Consumer Rights and in the Civil Code of the Russian Federation.

If defects are detected in the product (if they were not specified by the seller), the consumer has the right to:

demand replacement with a product of the same brand (same model and (or) article);
demand replacement with the same product of another brand (model, article) with a corresponding recalculation of the purchase price;
demand a proportionate reduction in the purchase price;
demand immediate free elimination of defects in the goods or reimbursement of costs for their correction by the consumer or a third party;
refuse to fulfill the purchase and sale agreement and demand a refund of the amount paid for the goods. At the request of the seller and at his expense, the consumer must return the defective product.

Thus, the requirement to replace a product of inadequate quality is one of the possible reactions of the consumer to the sale of a product with defects.

In this case, the consumer also has the right to demand full compensation for losses caused to him as a result of the sale of goods of inadequate quality.

Who is required to replace goods of inadequate quality?

According to paragraph 2 of Art. 18 of the Law on the Protection of Consumer Rights, if the above-described requirements are detected, the consumer has the right to present:

to the seller
or an authorized organization or an authorized individual entrepreneur.

According to paragraph 3 of Art. 18 of the Law on the Protection of Consumer Rights, the consumer can request a replacement for a product of the same brand (same model and (or) article) from the manufacturer, authorized organization or authorized individual entrepreneur, importer.

Is it possible to replace a product without a receipt?

As stated in the law, the consumer’s lack of a cash or sales receipt or other document certifying the fact and conditions of purchase of the goods is not grounds for refusal to satisfy his requirements. In accordance with Article 493 of the Civil Code of the Russian Federation, the consumer’s absence of these documents does not deprive him of the opportunity to refer to witness testimony in support of the conclusion of the contract and its terms.

Will the price change if I replace a product of poor quality?

When deciding to replace a low-quality product, you need to know whether you will have to pay extra to the seller (if the product that is handed over to you will cost more) or, conversely, you will have to pay extra if the defective product is replaced with a cheaper product. The law contains rules according to which the final price is determined as a result of replacing a low-quality product (Article 504 of the Civil Code of the Russian Federation, Article 24 of the Law on the Protection of Consumer Rights). So, when replacing a defective product:

for goods of appropriate quality corresponding to the retail purchase and sale agreement (for goods of the same brand (same model and (or) article)), the price of the goods is not recalculated (and the seller does not have the right to demand compensation for the difference between the price of the goods established by the contract and the price of the goods existing at the time of replacement of the goods or the court’s decision to replace the goods);
for a product that is similar, but different in size, style, grade or other characteristics (the same product of a different brand (model, article)) if the price of the product to be replaced is lower than the price of the product provided in exchange, the consumer must pay the difference in prices; if the price of the goods to be replaced is higher than the price of the goods provided in exchange, the difference in prices is paid to the consumer. The price of the goods to be replaced is determined at the time of its replacement, and if the consumer’s requirement is not satisfied by the seller, the price of the goods being replaced and the price of the goods transferred in exchange are determined at the time the court makes a decision to replace the goods.

Replacement period for goods of poor quality

We will determine within what time frame you can demand replacement of goods of inadequate quality.

The consumer has the right to demand replacement of a low-quality product if defects are discovered during the warranty period or expiration date . If a warranty period or expiration date has not been established for a product, the consumer has the right to make a demand for replacement of a product of inadequate quality if defects in the goods are discovered within a reasonable time, but within two years from the date of their transfer to the consumer, unless longer periods are established by law or contract ( Read below about the timing of replacement of technically complex goods.)

In cases where the warranty period provided for in the contract is less than two years and defects in the goods are discovered by the consumer after the expiration of the warranty period, but within two years, the consumer has the right to present to the seller (manufacturer) a demand for replacement of low-quality goods if he proves that the defects in the goods arose before transfer to the consumer or for reasons that arose before this point.

Here is another provision of the law, which also concerns the timing of replacement of defective goods.

If significant defects in a product are identified, the consumer has the right to present to the manufacturer (an authorized organization or an authorized individual entrepreneur, importer) a demand for the free elimination of such defects if he proves that they arose before the transfer of the product to the consumer or for reasons that arose before that moment. This requirement may be presented if defects in the goods are discovered after two years from the date of transfer of the goods to the consumer, during the service life established for the goods, or within ten years from the date of transfer of the goods to the consumer if the service life has not been established. If the specified requirement is not satisfied within twenty days from the date of its presentation by the consumer or the defect of the goods discovered by him is irreparable, the consumer, at his choice, has the right to present to the manufacturer (an authorized organization or an authorized individual entrepreneur, importer) other requirements that the consumer has the right to present when defects are discovered, including demanding replacement of goods of inadequate quality (clause 6 of Article 19 of the Law on the Protection of Consumer Rights).

The deadlines for the consumer to submit claims regarding product defects are brought to the attention of the consumer in the information provided to the consumer about the product.

Terms of replacement of technically complex goods of inadequate quality

In accordance with paragraph 1 of Art. 18 of the Law on the Protection of Consumer Rights, if defects are detected in a technically complex product (the List of technically complex products is approved by the Government of the Russian Federation), the consumer has the right

refuse to execute the purchase and sale agreement and demand a refund of the amount paid for such goods
or submit a requirement to replace it with a product of the same brand (model, article) or with the same product of a different brand (model, article) with a corresponding recalculation of the purchase price

within fifteen days from the date of transfer of such goods to the consumer.

In this case, the consumer has the right to demand the replacement of a technically complex product or refuse to fulfill the purchase and sale agreement and demand the return of the amount of money paid for the product, regardless of how significant the deviations from the requirements for the quality of the product established in Article 4 of the Law on the Protection of Consumer Rights were, if provided that such demands were presented within fifteen days from the date of its transfer to the consumer (clause 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17).

After this period, these requirements must be satisfied in one of the following cases:

detection of a significant defect in a product (a significant defect in a product is an irreparable defect or defect that cannot be eliminated without disproportionate costs or time, or is detected repeatedly, or appears again after its elimination, or other similar defects);
violation of the deadlines established by the Law on the Protection of Consumer Rights for eliminating product defects;
the impossibility of using the product during each year of the warranty period in total for more than thirty days due to repeated elimination of its various deficiencies.

If the purchased product has defects, you have the right to demand a replacement with another product.
How long does the seller have to replace the product of inadequate quality?

The seller (manufacturer, authorized organization or authorized individual entrepreneur, importer) is obliged to replace defective goods within seven days from the date the consumer submits a request for its replacement (Clause 1 of Article 21 of the Law on the Protection of Consumer Rights).

If quality control is carried out

If it is necessary to carry out an additional check of the quality of the goods, the maximum period for replacing goods of inadequate quality is increased to twenty days from the date of presentation of the request for replacement.

If the seller (or another person to whom a request is made to replace the goods) does not have the goods necessary for replacement at the time of presentation of the demand, the replacement must be carried out within a month from the date of presentation of such a demand.

If the replacement of goods occurs in the Far North and the seller does not have the necessary goods

If the goods were purchased in the regions of the Far North (areas equivalent to them), and the seller does not have the goods necessary to replace them, the requirement to replace goods of inadequate quality must be satisfied within the time required for the next delivery of the corresponding goods to these areas.

If it takes more than seven days to replace the item

At the request of the consumer, if it takes more than 7 days to replace a defective product, the seller (manufacturer or authorized organization or authorized individual entrepreneur) within 3 days from the date of presentation of the request to replace the product is obliged to provide the consumer with temporary use of the product free of charge for the period of replacement durable goods with the same basic consumer properties, providing its delivery at your own expense. However, this rule does not apply to goods from the List of Durable Goods, which are not subject to the buyer’s requirement to provide him with a gratuitous product for the period of repair or replacement of a similar product (approved by Decree of the Government of the Russian Federation of January 19, 1998 N 55).

Procedure for replacing goods of inadequate quality

After discovering defects in the purchased product, the consumer contacts the seller (or another person who is required to replace the product). It is necessary to draw up a claim for the replacement of goods of inadequate quality, in which you list the detected defects and your requirements in connection with this (you must have evidence of receipt of this claim by the seller or other person to whom the demand for replacement of the goods is presented).

The seller (or another person who is required to replace the goods) is obliged to accept goods of inadequate quality from the consumer and, if necessary, check the quality of the goods. In this case, the consumer has the right to participate in checking the quality of the product.

If the opinions of the buyer and seller about the reasons for the occurrence of defects in the goods differ, the seller is obliged to conduct an examination of the goods at his own expense. The consumer has the right to be present during the examination of the goods and, in case of disagreement with its results, to challenge the conclusion of such examination in court. If, as a result of the examination of the goods, it is established that its defects arose due to circumstances for which the seller (manufacturer) is not responsible, the consumer is obliged to reimburse the seller (or other person to whom the requirement to replace the goods is presented) for the costs of conducting the examination, as well as those associated with its implementation. costs of storing and transporting goods.

When replacing a defective product, please consider the following:

If the product does not have a warranty period

the seller or other person to whom the requirement to replace the goods is presented is responsible for the defects of the goods if the consumer proves that they arose before the transfer of the goods to the consumer or for reasons that arose before that moment.

If the product has a warranty period

the seller or other person to whom the requirement to replace the goods is presented is responsible for the defects of the goods, unless he proves that they arose after the goods were transferred to the consumer as a result of the consumer’s violation of the rules for using, storing or transporting the goods, the actions of third parties or force majeure.

The seller or other person who is presented with a replacement requirement is obliged to replace the product of inadequate quality with a new product, that is, with a product that has not been used.

When replacing a product, the warranty period is calculated anew from the day the product is transferred to the consumer (Clause 2 of Article 21 of the Law on the Protection of Consumer Rights).

Who pays for the delivery of defective goods when replacing them?

If the consumer exercises his right to replace a product of inadequate quality, who will pay for the transportation of this product? Paragraph 7 of Article 18 of the Law on the Protection of Consumer Rights states that the delivery of large goods and goods weighing more than five kilograms for replacement and (or) their return to the consumer is carried out by and at the expense of the seller (manufacturer, authorized organization or authorized individual entrepreneur, importer). In case of failure to fulfill this obligation, as well as in the absence of the seller (or other person to whom the requirement to replace the goods is presented) at the consumer’s location, delivery and (or) return of these goods can be carried out by the consumer himself (the seller is obliged to reimburse the consumer for expenses associated with delivery and (or) return of the specified goods).

Replacing a product with defects with a product of the same brand (model, article), if such a product is discontinued

If the consumer has made a demand to replace a product with defects with a product of the same brand (model, article), but such a product has already been discontinued or its supply has been stopped, etc., then in accordance with Article 416 of the Civil Code of the Russian Federation, the obligation of the seller (manufacturer, authorized organization or authorized individual entrepreneur, importer) regarding such replacement is terminated due to the impossibility of fulfillment and the consumer has the right to present another requirement listed in paragraph 1 of Article 18 of the Law on the Protection of Consumer Rights, Article 503 of the Civil Code of the Russian Federation. The burden of proving the impossibility of replacing the goods due to circumstances for which the seller (authorized organization or authorized individual entrepreneur, importer) cannot be responsible, as well as the burden of the latter taking all necessary measures to fulfill the consumer’s requirements in these cases lies with the seller (authorized organization or authorized individual entrepreneur , importer) (clause 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17).

Replacement of goods of inadequate quality: judicial practice

Let's consider several examples from judicial practice regarding the requirement to replace goods with defects:

According to the materials of one case, the buyer purchased a washing machine, but during operation he discovered a flaw: when switching to the drying mode, the machine generated an error. According to the claim, he was denied a free replacement of the low-quality product with a product of the same brand, so the buyer went to court. The court considered that the plaintiff’s demand to replace defective goods with goods of proper quality must be satisfied (Decision of the Ruzsky District Court (Moscow Region) dated July 18, 2020 in case No. 2-784/2018).
The buyer purchased a used car on credit. After the purchase, the new owner of the car repaired it, because... defects were discovered that were not specified by the seller during the sale (he could not use the product for 68 days due to the elimination of its defects). In this regard, the buyer demanded a replacement car. Since the plaintiff’s car could not be used for more than 30 days during at least one year of warranty due to repeated repairs caused by its various shortcomings, the court ordered the car dealership to replace the buyer’s purchased car with a product of the same brand (model, article) or with a different product. brand (model, article), and also collected interest on the loan agreement, a penalty, compensation for moral damage, a fine (Decision of the Lobnensky City Court (Moscow Region) dated November 9, 2020 in case No. 2-513/2018).
In another case, the consumer was denied a claim for replacement of a product of inadequate quality with a similar product, collection of a penalty, compensation for moral damage, etc. due to the fact that the store gave a positive response to the buyer’s claim within the seven-day period established by law to replace the low-quality product (Decision of the Timiryazevsky District Court (Moscow) dated July 28, 2020 in case No. 2-2559/2015).

So, replacing a product of inadequate quality allows the consumer to restore the violated rights. The law defines the procedure and terms for replacing low-quality goods, and the conditions for replacing technically complex goods. If the seller refuses to replace a defective product, you have the right to go to court.

Posted by:

Ralenko Anton Andreevich

Moscow 2020

Reasons and conditions for returning goods between legal entities

Reasons for making a return may include:

Purchase of low-quality goods (services) or goods that do not meet the stated requirements;
Purchasing goods with defects, defects, malfunctions;
Concealment by the seller of existing defects.

This is also important to know:
Termination of a lease agreement by agreement of the parties - sample

The parties may provide for this option if the product was initially purchased with defects (damage). A separate act to the agreement is drawn up regarding this. The act indicates the name of the product, its characteristics, the number of units and specifically describes the existing defects. If the buyer has signed such a document, then in the future it will be almost impossible to return the goods between legal entities.

Fact
Return conditions must be specified in a separate clause in the contract.

The dispute can be resolved in several ways:

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The seller undertakes to eliminate the defects himself;
The buyer will eliminate the defects, and the seller will compensate for the costs;
The seller will reduce the price of the product.

However, if the seller has not brought the goods into proper condition and it cannot be used for its intended purpose, the buyer may demand to terminate the contract or replace the goods with a new quality item.

Fact
It is not possible to return goods of proper quality between legal entities.

In situations where defects in the goods are discovered not during receipt, but during operation, the same rules apply as when returning goods with defects discovered upon acceptance.

As a result of the return, the goods are returned to the seller, and money is transferred to the buyer's bank account.

Sample letter to return goods

Initially, the legal entity must make a claim in writing and send it to the seller (supplier). This document will serve as a notification to the seller about the sale of goods that do not meet the stated parameters or are defective. Of course, you can contact the seller by telephone, which is much faster and more convenient. But a telephone conversation will not serve as confirmation of the stated refund requirements. At the same time, a written claim can be useful as a document for the court.

This is also important to know:
Measure of liability for services under the contract

The claim is made in any form. There is no set form for a claim. A claim is drawn up in the form of a letter on the letterhead of a legal entity addressed to another legal entity - the seller (supplier). The letter to return the goods must contain:

Full name and details of the legal entity - the buyer;
Number and date of the purchase and sale (supply) agreement;
Product name, number of units;
Identified malfunction;
Request for satisfaction of the claim (request for replacement, refund, reduction of amount, etc.).

The claim must make reference to regulations and clauses of the contract, according to which the buyer has the right to exercise his right to receive a quality product (service).

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The claim must be signed by the head of the legal entity on whose behalf it is sent and sealed. It is better to send a letter about the return of goods by registered mail with notification.

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If the problem is resolved peacefully, the seller will replace the product with a quality one or offer to return the amount paid. If the claim remains unexamined, there is no response and the seller continues to ignore the buyer, it makes sense to go to court.

Fact
Sample letter to return goods

How to correctly write a letter to a supplier demanding the return of purchased products

A well-written letter outlining the reasons for returning the product will be the key to quickly resolving the situation in favor of the applicant. This can be facilitated by either personally delivering the letter or sending it to the supplier’s address. There are differences between the features of returning goods from an ordinary buyer and from a legal entity that purchased a wholesale batch for its own needs or subsequent sale. They are related to filling out documents and deadlines for completing the procedure.

The desire to return a previously purchased product is completely feasible. To do this, a citizen must personally contact the seller with a letter. It can be done at home or on site.

The requirements for the document are quite simple. They are stipulated by the Law of the Russian Federation of 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights”, and the Civil Code of the Russian Federation.

The letter is written in two copies. One is given to the seller, and the second, with a signature confirming acceptance of the letter for consideration, date and seal, remains with the buyer. The applicant must have an identification document with him.

This way of submitting a letter is the only correct one. If you contact an employee with a question about returning an item orally, it will not be considered.

By attaching a sales or cash receipt to the letter, the applicant will simplify the procedure for proving the actual purchase of goods in a specific place. However, the absence of a check is not a reason to refuse to accept the letter. It is necessary to indicate the exact date of purchase, approximate time, cash register number (if information is available), and indicate the request for information from the seller’s cash archives. Proof of purchase of goods in the absence of a receipt can be a warranty card or witness testimony. Their presence must be reflected in the letter.

Return deadlines

The contract must specify the period during which the buyer can make claims regarding the goods. If the deadlines are not specified, then civil law establishes a 30-day period for refunds between legal entities. If the parties agree on a return, the seller is obliged to return the amount of money for the goods to the buyer within 10 days. All return costs are borne by the seller (including bank commissions), unless the contract stipulates other conditions.

This is also important to know:
Termination of an agreement by the Civil Code of the Russian Federation - grounds under Art. 450 Civil Code of the Russian Federation

It is more convenient to calculate the return period from the moment the claim is sent to the legal entity. If the claim was sent by letter with notification, then from the moment the seller receives the claim, the period for satisfying the claims can be counted.

The above procedure is a pre-trial resolution of the dispute. A buyer who was unable to deal with an unscrupulous seller at the pre-trial stage may exercise the right to go to court.

Time frame for consideration and decision making

When filing a claim about a low-quality purchased product, an authorized organization (manufacturer, seller, supplier, importer) is obliged to replace the defective item within no more than seven days from the date of the complaint.

If it is necessary for the seller to conduct additional research on the quality of the product, within no more than twenty days from the date of presentation of the replacement request. If upon contacting the manager did not have this or a similar product, then within thirty days.
In areas with difficult access, the item must be replaced within the time required for delivery.
In cases where it takes more than a week to replace a defective product, the seller is obliged to provide the buyer with a product with similar consumer properties for temporary use within three days.
The seller must exchange a non-food product within two weeks. The day of purchase is not taken into account.
If there is no item of claim for exchange under a separate agreement between the buyer and seller, the product may be subject to exchange at the time a similar product goes on sale.

What to do if they don’t respond

In cases of failure to fulfill obligations on the part of the trade organization, paragraph one of Art. 23 Federal Law “On Protection of Consumer Rights”. According to it, each day of delay in replacing a defective product beyond the period established by law will cost the seller one percent of the value of the item of claim as a penalty.

The buyer has the right to apply to court with a corresponding statement of claim. For violation of the PPA, the seller is subject to civil, administrative or criminal liability, depending on the severity of the act committed. To correctly write a statement of claim and timely and correctly apply to the judicial authorities, it is recommended to use the help of an appropriate legal consultant.

Returning goods through court

The return procedure also takes place in court. This is done by terminating the purchase and sale (supply) agreement. A party cannot terminate the contract unilaterally, so this is only possible through the court. The buyer can get his money back for a low-quality product. However, in order to prove to the court the fact of purchase from a particular seller, you must present documents confirming this circumstance. For example, provide invoices - invoices, payment statements, acceptance certificates, invoices for shipment of goods. It would be a good idea to take photographs showing defects in the product. Plus, attach a copy of the contract and the letter sent to return the goods. A claim where the parties are legal entities is filed in an arbitration court.

To avoid misunderstandings regarding the purchased product, in all cases it is important to draw up a purchase agreement, where all the conditions are described in detail. A well-drafted agreement will allow the return of goods by a legal entity to a legal entity without unnecessary difficulties, if the need arises.