Short delivery of goods by the supplier. Responsibility

An unpleasant surprise for the buyer is the discrepancy between the quantity of goods according to documents and in fact. There is a violation of the supply contract, what to do in this case? How to correctly register an insufficient volume of goods received? What liability is provided for a negligent supplier? We look at it in this article.

If the shipping agent is not a party to the supply agreement, he cannot be sued for debt collection for short delivery of goods, even if the specified person is responsible for the quality and quantity of the goods supplied by virtue of the agency agreement and a local act mandatory for the agent and the parties to the supply agreement . View the court's opinion

Short delivery or non-delivery?

The Civil Code of the Russian Federation, when considering issues of deliveries under relevant contracts, does not explain what exactly is considered a shortfall. Nevertheless, buyers, unfortunately, often encounter this phenomenon in practice. The courts have accumulated enough precedents related to short deliveries, so the following definition has emerged.

Question: What are the features of calculating penalties for short delivery or late delivery of a consignment of goods? View answer

Shortage of goods is a violation by the supplier of the conditions specified in the supply contract or other shipping documents regarding the volume of goods actually delivered. In other words, less goods arrived at the buyer’s warehouse than was indicated:

in the supply contract;
on the invoice;
in the invoice, etc.

IMPORTANT INFORMATION! According to existing judicial precedent, short delivery also includes the inability to sample goods if the supplier is at fault.

A delay in the delivery of all goods or its next batch does not apply to non-delivery - such a violation is called non-delivery .

What is the buyer's procedure if (quantity discrepancy)
is detected upon acceptance of the goods

Legislative regulation of cases of short delivery

IMPORTANT! A sample report on discrepancies in quantity and quality of goods from ConsultantPlus is available here

Since underdelivery is a violation of the terms of the contract, legally it falls under the requirements for purchase and sale agreements, since it is a type of them. These agreements are passed through the department of Ch. 30 of the Civil Code of the Russian Federation (paragraph 3 “Purchase and sale”).

Clause 5 Art. 454 of the Civil Code of the Russian Federation confirms that the supply agreement refers to the sale and purchase by default, unless other features are provided for in its text. In ch. 30 of the Civil Code of the Russian Federation, short delivery is regulated by Art. 511 and 512.

The injured party may compensate for losses due to short delivery in accordance with paragraph 1 of Art. 393 Civil Code of the Russian Federation.

If the goods not received in advance were paid for in advance, in addition to the return of money, interest may also be charged - this provision is provided for in Art. 395 of the Civil Code of the Russian Federation.

Unilateral refusal of the supply agreement is justified in paragraphs. 1, 2 tbsp. 523 Civil Code of the Russian Federation.

NOTE! If the supply agreement does not stipulate any special nuances, it is automatically subject to the general requirements for contracts (Articles 420-453 of the Civil Code of the Russian Federation) and obligations (Articles 307-419 of the Civil Code of the Russian Federation).

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What should a buyer do if he discovers a shortage?

While checking the invoices and counting the cargo, the buyer discovered a discrepancy. There is a shortage of supplies. How to properly file this violation?

Fixing shortfalls. The first step is to document the detected discrepancy between the quantity of goods and the numbers in the accompanying documents. This is done using a specialized act, which is drawn up by representatives of the buyer and supplier. If it is impossible to attract a supplier (for example, the cargo is delivered by a transport company), it is better to foresee this situation in advance and stipulate in the supply agreement the possibility of registering shortages with the participation of an independent person. Standard forms of acts:
TORG-3 – used for goods from import suppliers;
M-7 – acceptance of materials.

If the shortfall was not discovered immediately, the form of the report may be free (for example, the total number of packages was recalculated, and when they were opened, it turned out that some packages were incomplete). In this case, it is necessary to prove that upon acceptance it was not possible to check the actual quantity of the goods.

FOR YOUR INFORMATION! To additionally document the fact of underdelivery, it is recommended to photograph the invoices, as well as the goods, if this shows underdelivery (incomplete containers, cargo that can be counted in the photo, etc.).

Mark on the invoice. The fact of short delivery must be noted in the shipping document. If there are several items in the invoice, a mark should be placed only in those lines where the goods are missing, and at the end it should be noted that there are no discrepancies for the remaining items. The invoice should also indicate the number of the completed non-delivery report.
Drawing up a letter of claim. In a more or less free form, a claim document is drawn up, which indicates data on shortfalls: the name and quantity of goods under the contract and in fact, the number of the drawn up report. The claim is sent to the supplier within the period specified in the agreement, or as soon as possible upon discovery of a shortfall. The claim must also indicate one of the following requirements or an acceptable combination of them:
reimbursement of funds for the purchase of the missing quantity of goods from another supplier;
delivery of the missing quantity within the agreed time frame;
revision of the quantity of goods in the accompanying documents and the supply agreement (the buyer agrees to a reduced batch with recalculation of the cost).
Supplier response. Depends on the requirement expressed by the buyer:
You will also have to transfer money in the event of a claim for compensation for shortfalls;
when a replenishment or revision of the batch size is required, the supplier will need to change the invoices, certify them with the signatures of management and mark the date of correction (the invoices themselves do not need to be corrected, since there is a statement of shortfall, the number of which is entered in them when recording).
Last resort. If there is no response from the supplier within a month (or other agreed period) after sending the claim, you need to file a lawsuit for underdelivery - it should be considered within 3 months. Further contact with enforcement services may be required.

How to write a letter of claim regarding the delivery of products in incomplete quantities?

So, what rules need to be taken into account when making a claim regarding non-delivery of goods or violation of delivery deadlines? As a rule, there is no generally established template that must be followed when writing a complaint. Therefore, you have the right to draw up a document in free form, taking into account some legal points.

Be sure to include the following items in your claim:

Initials of the addressee of the claim or full name of the company;
Your personal and contact information (full name, address, telephone);
The title of the document is “Claim”.
Describe the essence of the dispute;
To avoid misunderstandings, indicate in separate paragraphs the problems that you expect to be resolved;
Don’t forget to back up your words with factual data (dates, deadlines, etc.);
Present demands to the addressee;
When making a claim, refer to the clauses of the contract. Remember that requirements that were not specified in the original agreement of the parties may be considered unlawful;
A little below the main part, provide a list of supporting documentation;
Complete the claim with your personal signature and date of origination.

In order to deliver the claim to the addressee, you can use two options: hand it over personally or send it by registered mail with notification of arrival at the addressee. Remember that when choosing the first option, you need to make two copies of the claim, on one of which the addressee must leave a mark of delivery.

So, if you follow all the above rules, you will leave the counterparty with no option but to comply with your requirements.

Short delivery of a consignment of goods

An order from a supplier does not always have to arrive to the buyer at once. Art. 508 of the Civil Code of the Russian Federation allows delivery to be divided into lots, stipulating the size and delivery time of each of them. Unless terms are specifically specified, the default period is one month. In such situations, how to deal with shortfalls detected in one of the batches? The law recommends rules (Article 511 of the Civil Code of the Russian Federation), but the parties to the contract can change them and establish their own procedure:

If there is a shortage in one of the first shipments, the supplier must make up for it in one or more subsequent shipments.
Unless otherwise provided, the shortage must be made up before the expiration of the supply contract, otherwise a delay will be added to the shortfall.
If the supplier makes up for the shortfall after the end of the established period, he does not have the right to demand payment for this and is even obliged to return the advance payment to the buyer, if any was given.
If the goods were delivered to several recipients at once and there was a shortfall in one of the shipments, it is not covered by the “extra” goods shipped to another buyer - the shortfall will have to be made up by the addressee with whom the contract was concluded and to whom exactly the goods were “underdelivered” (clause 2 of Art. 511 of the Civil Code of the Russian Federation).

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Possible reasons for the delay

The first part of the document implies an address to a specific person. Most often this is the head of the partner company. It happens that letters are sent to many small customers because a large shipment that was supposed to satisfy the demand of many customers is delayed. In this case, the paper should be sent to a large number of addresses.

As for the specific reason for the delay, it must be sufficiently compelling. Everything will depend on the situation. You can limit yourself to general phrases. For example:

“There were problems at customs.”
“Due to the negligence of the logistics company that provides services for transporting the goods.”
"Due to delays in deliveries from the distributor."
“Due to problems of the partner company, etc.”

If the addressee is dissatisfied (which is natural), then you can indicate the specific workers responsible for the situation. Also in your defense, you can consider the measures that are being taken to speed up the delivery of goods. Naturally, each such letter must be accompanied by a sincere apology.

When can you request a refund?

A refund application is sent upon completion of the agreed product delivery period. To do this, you need to have a payment document (check, receipt) confirming the fulfillment of your part of the transaction. If there is a written agreement, the delivery time is specified in its terms and conditions.

You can request a refund for undelivered goods:

Through negotiations with the supplier;

By submitting a claim;

By filing a claim in court.

Oral negotiations

A telephone call demanding a refund will be enough if it is formulated correctly and justified by the law. The supplier tries not to terminate the contract and not lose money. He may offer to extend the agreement or replace the supplied product with a similar one. The customer has the right to agree to new conditions or refuse.

Written complaint

When starting oral negotiations with an unscrupulous party, you should remember that they are not evidence. But a letter of claim with an attached receipt for its forwarding or a mark of receipt can serve as evidence in court.

If the issue is not resolved through oral or written negotiations, the bona fide party can only demand payment of the money spent and penalties through the court.

Refund terms

The law does not provide a time frame for indemnification of the buyer's losses. But the seller cannot delay in responding to the complaint. When an individual applies, the period for responding to a complaint is ten days, and in contractual relations between business entities - a month.