Imposition of banking services: how to avoid it and what the law says

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In everyday life, there are often situations when unnecessary services are imposed on consumers. Such offers can be encountered in the areas of insurance or lending. At the same time, the client is not simply offered a related option, but the conditions are stated under which it is impossible to receive the main service without an additional one.

For your information

Cellular operators also abuse the imposition of unnecessary benefits. Subscribers learn about the connected option, as a rule, only after discovering increased bills for using communications. There is not a single person who has not encountered advertising over the phone. But not many people know that there is legal authority for all of the above methods of influencing a client.

Normative base

Imposing services on a consumer is an illegal marketing ploy on the part of the organization providing them. Article 16 of the Law “On Protection of Consumer Rights” protects the interests of citizens in this matter. The main provisions of the normative act are as follows:

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• The seller does not have the right to condition the purchase of a necessary product or service on the purchase of another product or the purchase of an unnecessary type of service.
• A trade organization does not have the right to include terms in a contract with a consumer that infringe on the latter’s rights.
• The organization providing services does not have the right to provide related services without the consent of the consumer. Otherwise, the person for whom the additional service was provided has every right not to pay for it.

Attention
If, as a result of the imposed contract, the consumer is forced to incur material costs, the service provider is obliged to reimburse them in full.

Article 14.8 of the Code of the Russian Federation on Administrative Offenses protects the rights of clients. Paragraph No. 2 of the regulatory document states that it is not allowed to stipulate in a written agreement conditions that infringe on the rights of consumers.

Article 426 of the Civil Code of the Russian Federation states that a commercial organization does not have the right to refuse a client to enter into a public contract without compelling reasons.

IMPORTANT

As for intrusive telephone advertising, regulation is carried out by a separate legal act. Federal Law N 38-FZ “On Advertising”, namely its 18th article, provides for the distribution of marketing offers by telephone only with the consent of the subscriber.

Article 16. Invalidity of contract terms that infringe consumer rights

1. In general, the commented norm is close in meaning to the content of Article 168 of the Civil Code, which establishes that a transaction that does not comply with the requirements of the law or other legal acts is void. However, in this case, the scope of application of the Law is still wider. Many rules are dispositive in nature and presuppose, when concluding a transaction, both the granting of certain rights to the subjects of law, and the possibility of limiting these rights by agreement of the parties to this transaction.

For example, in accordance with Article 464 of the Civil Code, if accessories or documents related to the goods are not transferred by the seller within a reasonable time appointed by the buyer, the latter has the right to refuse the goods, unless otherwise provided by the contract.

As you can see, the general norm of the Civil Code allows the parties to enter into an agreement limiting the buyer’s right to refuse the product, but the commented norm recognizes such an agreement as invalid, since it can clearly infringe on the rights of the consumer, both in terms of using the product and in terms of making claims regarding defects goods or compensation for damage caused by these defects.

If, as a result of the execution of a contract that infringes the rights of the consumer, he incurs losses, they are subject to compensation by the manufacturer (performer, seller) in full.

In this case, the legislator proceeded from the presumption that the consumer lacked special knowledge, namely legal knowledge. A consumer who does not have sufficient knowledge in the field of consumer protection will most likely not be aware that some of the terms of the contract he has entered into are invalid because they infringe on his rights. In addition, it should be remembered that in accordance with paragraph 2 of Article 9 of the Civil Code, the refusal of citizens to exercise their rights does not entail the termination of these rights, except in cases provided for by law.

2. One of the most common violations of consumer rights is the imposition in one form or another of the purchase of various goods and services. Sometimes sellers or performers simply refuse to conclude an agreement with a consumer who does not want to purchase something additional along with the product, work or service he needs. In this case, in addition to the violation of the commented norm, Article 426 of the Civil Code is also violated, establishing that a commercial organization does not have the right to give preference to one person over another with regard to concluding a public contract, except in cases provided for by law and other legal acts. In other cases, the terms of the contract provide for the provision of certain benefits to the consumer if he purchases additional goods, works or services, or, conversely, the terms of the contract provide for the deprivation of certain benefits for those consumers who refuse to purchase additional options.

All such contract terms are invalid and cannot be taken into account when executing contracts or resolving disputes.

There are also more complex situations when the seller sells a set of goods, works or services, or when some goods are integrated into each other. In these cases, a differentiated approach to assessing the actions of the seller or performer is necessary.

If the manufacturer has created a set of goods that complement each other (for example, a set of furniture), and the seller offers this set for sale in the same form as he purchased it, then the seller’s actions will not violate the commented norm, since the product in this case will be namely a set of objects, and not each object individually.

There will be no violation if several items of the same type are combined in packaging intended not for transportation and movement of goods in a warehouse, but for use by the consumer. In the first case, the packaging contains a minimum of information about the product (or does not contain it at all), as well as design elements, combines a large number of items intended for sale, and is usually not very convenient to carry in one hand. In the second case, the packaging contains, as a rule, no less information about the product than one of the items included in it, is colorfully designed and convenient to carry in one hand; usually such packages do not contain a large number of items. If the seller offers consumers to purchase certain goods only in a few pieces or in large quantities (small wholesale), his actions will be contrary to the Law.

Currently, the problem of purchasing goods whose use is not intended by the manufacturer without concluding a service agreement is becoming urgent. A striking example of this situation is the proliferation of a mobile device called the iPhone. The company that produces it, Apple, distributes this product only in those countries in which it manages to conclude contracts with mobile operators, under the terms of which Apple receives a certain share of the payment for services provided by these operators to consumers who have purchased an iPhone. along with the contract. It should be said that today official supplies of this product are carried out in a small number of countries, in many countries it was not possible to reach an agreement with operators, and in others, local legislation prohibits concluding such transactions.

The Russian Federation also belongs to the latter; the commented norm, among other things, prohibits the sale of goods only subject to the conclusion of an agreement for the provision of paid services (in this case, communication services). In addition, in accordance with Article 32 of the Law, the consumer has the right to refuse to fulfill the contract for the performance of work (rendering services) at any time, subject to payment to the contractor for the expenses actually incurred by him related to the fulfillment of obligations under this contract. This means that even if a consumer purchased a product with a contract from a specific mobile operator, he could terminate it at any time.

For the reasons stated above, products such as iPhone cannot be sold under the same conditions as their manufacturers in other countries.

The law prohibits conditioning the satisfaction of consumer demands made during the warranty period on conditions not related to defects in goods (work, services).

Very often, the fulfillment of warranty obligations is tied to the purchase of certain goods, works or services that are not the subject of the contract. Often, contracts concluded with consumers, or warranty cards produced by product manufacturers, indicate a whole list of reasons why the consumer may be denied satisfaction of his requirements within the framework of a quality guarantee: lack of seals, failure to undergo maintenance at a certain service center, purchase of additional components from third parties, etc. It should be recognized that almost always such conditions are insignificant.

The fact is that the provisions of the Law establish certain responsibilities of sellers, manufacturers and authorized persons only depending on whether a defect is detected within the warranty period or not. If a defect is discovered within the warranty period, the Law establishes the obligation of these persons either to satisfy the consumer’s requirements, or to prove that they arose after the transfer of the goods (work, service) to the consumer as a result of the consumer’s violation of the rules for the use (work, service), storage or transportation of the goods, actions of third parties or force majeure (clause 6 of article 18 and clause 4 of article 29 of the Law). As you can see, the occurrence of these obligations does not depend on the will of the parties and cannot be the subject of an agreement (contract) or a unilateral transaction (establishment of a warranty period by the manufacturer), since these relations are regulated by mandatory norms of law.

In the above examples, failure to fulfill the requirements of the contract or warranty card will not lead to a change in the scope of the obligations of the seller, performer, manufacturer or authorized person, but may affect the possibility of proving the consumer’s guilt in the occurrence of a defect. The absence of seals in itself does not mean that the consumer opened the product, did something with its contents and as a result of these actions a defect arose. But if the examination establishes that the product has become unusable due to mechanical damage to its internal parts, then the fact that at the time of transfer of the product to the seller or manufacturer the product did not have seals may testify in favor of the consumer’s fault for the defect.

A requirement to service a product or purchase additional components from certain persons can and should be regarded as an imposition of goods or work (services).

Also, do not forget that the contract can only agree on the additional obligation of the seller of the goods, provided for in paragraph 7 of Article 5 of the Law, but not the manufacturer’s warranty obligation, which is a unilateral transaction; the purchase and sale agreement does not apply to it at all.

In general, taking into account all the provisions of the Law regulating the occurrence and fulfillment of obligations in connection with the discovery by the consumer of defects in goods, works or services, we can conclude that the manufacturer and seller have the right to establish only the duration of the warranty period (for more details on the duration of the warranty period, see commentary to Article 5 of the Law).

3. If, without performing additional work or services, the execution of a contract or performance of services is impossible, or the result obtained does not correspond to the wishes of the consumer, the contractor has the right to point this out to the consumer and offer to perform these services or work. But the contractor himself does not have the right to do anything at the expense of the consumer. The same applies to the sale of goods; the seller does not have the right to carry out pre-sale preparation of the goods at the expense of the consumer. In addition, by Decree of the Government of the Russian Federation of January 19, 1998 N 55 “On approval of the Rules for the sale of certain types of goods, a list of durable goods that are not subject to the buyer’s requirement to provide them free of charge for the period of repair or replacement of a similar product, and a list of non-food products of proper quality, not subject to return or exchange for a similar product of a different size, shape, dimension, style, color or configuration”, sellers are required to carry out pre-sale preparation for many types of goods before placing them on the sales floor.

Comment source:

“ARTICLE-BY-ARTICLE COMMENTARY TO THE LAW OF THE RUSSIAN FEDERATION “ON PROTECTION OF CONSUMER RIGHTS”

V.R.Dvoretsky, 2009

When is a service considered imposed on the consumer?

Sellers are interested in selling as many of their goods or services as possible. To do this, they use various tricks. Clients are not always sufficiently competent in matters related to the acquisition of the necessary product or service. The seller, guided by psychological techniques and various marketing techniques, tries to sell a stale product or an unpopular service. He may force the consumer to sign an agreement that goes against the latter's interests.

Attention

It is not difficult to distinguish between a service imposed on consumers and promotions. When you go to a store that has a discount program, you may see a “2 for the price of 1” offer. This means that at the moment it is possible to purchase two goods, but pay only for one. Moreover, these items can be purchased separately, but at the current price without taking into account the discount. When a seller offers to buy a specific item only in conjunction with another lot (although it is presented individually), this will be considered an imposed service.

How does a bank impose services?

The main “trump card” of credit company employees is the financial illiteracy of clients. A huge amount of information is poured onto an ignorant person. It is difficult to catch something from the stream of speech; the ear “clings” only to familiar words: “benefit”, “savings”, “guarantee”. That’s the purpose—to create the illusion of making the right choice.

EXAMPLE:

Consumer rights

The consumer should know that imposing a service or unnecessary product is illegal, and it is important to defend their interests in obtaining the material benefits offered.

The buyer is granted the following rights:

• freedom in choosing goods or services;
• lack of external pressure;
• The imposition of goods or services is not allowed;
• The buyer has the right to request reimbursement for expenses incurred.

The consumer has the right to receive all the information he is interested in about a product or service. This is stipulated in the Law “On the Protection of Consumer Rights”; the seller does not have the right to refuse to provide all the information of interest. To avoid unpleasant situations and the imposition of services on the consumer in the future, you should carefully read the contract before signing it.

Additional Information

If the seller actively imposes his services, despite the client’s reluctance to use the additional option, it is necessary to refer to the Law “On the Protection of Consumer Rights”. In most cases this is enough. If the seller stands his ground and refuses to sell the main service to the consumer, it is worth contacting higher authorities.

Responsibility when imposing services on consumers

According to the legislation of the Russian Federation, the service provider bears administrative responsibility for imposing its service on the consumer, as a result of which the latter is forced to bear certain expenses.

Sanctions that can be applied to persons who violate Art. 16 Federal Law “On ZPP” and Art. 14.8 “Code of the Russian Federation on Administrative Offenses:

• Fine from 10 thousand to 20 thousand rubles - legal entities (Clause 2 of Article 14.8 No. 195-FZ).
• fine from 1 thousand to 2 thousand rubles – officials;
• full compensation for consumer losses associated with the operation of the contract, which contains conditions that run counter to the interests of the latter (Clause 1, Article 16 of the Federal Law “On ZPP”);
• according to Art. 13 of the Federal Law “On ZPP”, the seller must pay a fine in the amount of half the amount that appears in the satisfied consumer’s claim.
• The injured party has the right to demand moral compensation (Article 15 of the Law “On ZPP”).

Evidence is required to confirm that the additional service offered by the seller was imposed. If the consumer can prove the fact of abuse, he should contact the following authorities for further proceedings:

• Rospotrebnadzor;
• prosecutor's office;
• Federal Antimonopoly Service;
• Russian Union of Auto Insurers (in case of refusal of the MTPL contract);
• Central Bank of the Russian Federation (if banks violate the law);
• Roskomnadzor (offenses of mobile operators);
• court.

How can a consumer protect himself from the imposition of services?

The only effective method of protecting yourself from an unnecessary “package of offers” is to refuse them. If you had to pay for something you don’t need at all, there is always the possibility of compensation or invalidation of the contract.

Before using the service you should:

• carefully analyze the terms of the contract;
• show interest in unclear points, detail them;
• When offering additional services, inquire about the possibility of declining them.

If disagreements arise, contact your manager personally to resolve the issue. If this method does not turn out to be effective, then feel free to express your dissatisfaction with government agencies:

• Rospotrebnadzor is the main regulatory body protecting consumer rights;
• the prosecutor's office is a supervisory structure for compliance with laws and human rights with a wide range of powers. However, due to the fact that the range of possibilities for bringing to justice directly by the prosecutor is conditional and limited, redirection to other structures often occurs;
• Federal Antimonopoly Service, which is responsible for maintaining order in the financial sector. Specifically controls the ratio of the amounts of payments collected from the consumer to the level established by legislative acts;
• the court is the final authority called upon to resolve the conflict between the consumer and the service provider.

How to refuse an imposed service?

If a situation arises in which the seller openly wants to impose an unnecessary service on the consumer, you must refuse, citing the law “On the Protection of Consumer Rights.” Most often, this is enough. If the service provider still refuses to provide the required service, obliging the buyer to use an additional option, it is necessary to take decisive action.

The consumer draws up a statement in 2 copies, in which he describes in detail the essence of the complaint and the requirements that he makes to the seller. This document is sent to the head of the organization, and the second copy remains with the addressee. If a written complaint was ignored by higher management, you should contact higher authorities. For this purpose, an application is also drawn up, but it is sent to the authorized bodies.

Attention

The consumer has the right to file a claim against the trade organization. If the amount indicated in it is less than 50 thousand rubles. - Magistrates deal with it, the rest of the claims are sent to district courts. The claim must indicate the details of the parties involved in the dispute. The document states the essence of the problem that has arisen and the requirement to the seller. It is also necessary to attach evidence and describe the process of pre-trial proceedings.

It is necessary to clarify with sellers the conditions for purchasing a particular service. And in the case of an agreement, familiarize yourself with its clauses even before signing and pay attention to the fine print. The consumer can report an offense one year after it was committed.

Providing services by phone

Telephone spam is a fairly common phenomenon lately. Annoying calls or SMS occur at the most inopportune moments. At the same time, the subscriber did not give his consent to receive advertising in this way. Often requests to stop calling lead to nothing and telephone spam is repeated over and over again.

Additional Information

Often the consumer himself consents to the sending of advertising SMS. This happens, for example, when filling out a form in a store. To refuse the imposed service, the consumer needs to contact the seller and ask to stop the mailing.

To combat annoying calls and SMS, you should refer to Article 18 of Law No. 38-FZ “On Advertising”. Its essence boils down to the following: it is prohibited to distribute advertising via telephone unless consent has been given. If the subscriber contacts the advertiser to stop calls, the latter is obliged to comply with this requirement.

The consumer should file a complaint against annoying advertisers with the Federal Antimonopoly Service.

Imposing services when obtaining a loan

In the field of lending, it is not uncommon to encounter the imposition of services on consumers, when the bank, in addition to any type of loan or installment plan, obliges the client to use paid insurance. If a person who decides to take out a loan refuses insurance services, the bank finds many reasons for refusing the loan.

IMPORTANT

The service will be imposed on the consumer if the loan agreement is conditional on the purchase of additional insurance. If a credit institution considers the purchase of a protection package against any circumstances as a separate type of service, this situation will be legal.

Criteria for a loan agreement with unfavorable terms for the client:

• an insurance package of any kind is considered as a mandatory addition to the loan;
• the contract does not contain a clause allowing the client to refuse the additional service;
• there is no place in the contract for a signature giving consent to insurance;
• it is impossible to change the data in the contract;
• according to the terms of the contract, the client cannot choose an insurance company;
• the method of payment for the additional service is not specified;
• the contract states that when purchasing insurance, the loan is provided on more favorable terms.

From the point of view of the law, insurance is only necessary for a loan in which it is necessary to pledge property.

If a loan agreement with the included cost of insurance is signed, it can be terminated, while returning the cost of the related imposed service to the consumer.

Imposition of services: a list of dubious advantages

What types of services do bank managers offer for a fee:

• Life, health, property insurance.
• Credit cards with a grace period and an attractive interest rate.
• Paid information (SMS, messengers, email).
• Access to entertainment content: movies, music, online games.
• Possibility of personal service.

The most vulnerable category of the population is the elderly. The easiest way to mislead them is. Pensioners sometimes don’t even suspect: money is debited from their account every month for messages or newsletters.

Imposition of services when purchasing an MTPL policy

Having decided to insure their car under the MTPL policy, car owners are faced with the imposition of additional insurance. This could be life or home insurance, which the client does not need. If you refuse an additional protection package, the insurer does not undertake to issue compulsory motor liability insurance, often explaining this by the fact that the forms have run out or for other reasons.

In this case, the car owner needs to know his rights. OSAGO insurance refers to public contracts. According to Art. 426 of the Civil Code of the Russian Federation, an organization providing services does not have the right to refuse to conclude this type of contract if there are no grounds for it. Article 15.34.1. The Code of Administrative Offenses of the Russian Federation provides for administrative liability in the form of a fine on an insurance company from 100 thousand to 300 thousand rubles for unauthorized refusal to conclude an insurance contract or the inclusion of additional services in compulsory motor liability insurance.

For your information

Life insurance, apartment insurance, any other policy and compulsory motor liability insurance are different services and they must be provided separately from each other. The motorist has the right to refuse to purchase an additional policy when purchasing compulsory motor liability insurance. And the insurer in this case does not have the right to refuse to provide the latter (Article 16 of the Law “On ZPP”).

Article 445 of the Civil Code of the Russian Federation obliges insurers to conclude an agreement with the car owner within a month if the applicant has all the necessary documents to issue a policy. The fourteenth paragraph of the MTPL rules also states that the insurance company does not have the right to refuse to conclude a contract.

FAS accused Booking.com of imposing unfavorable conditions on hotels

The press service of Booking.com told RBC that the company is disappointed with the decision of the antimonopoly authority. “We believe it is fair that hotels list at least the same price on Booking.com as they do on their own website,” the company said. They noted that this allows users to select various accommodation options on a single platform, the opportunity to receive customer service in their native language and access to other services that Booking is developing.

It also ensures that hotels don't post inflated prices on Booking.com, encouraging customers to book directly through their own sites or other channels, the service added.

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FAS Russia issued a second warning to Booking.com Business

A number of hoteliers advocated the abolition of price parity, so the market will perceive the news positively, suggested Vadim Prasov, vice-president of the Federation of Restaurateurs and Hoteliers, in a conversation with RBC. According to him, there were cases when hoteliers violated the condition of price parity not on purpose - due to the human factor or changes in one of the sales channels, and when Booking.com discovered this, the hotel greatly lost its position in issuing the service.

Booking.com itself occupies a leading position in Russia - it accounts for about 70% of the hotel booking market, and if the price parity condition is canceled, it is unlikely to lose sales volumes, and hotel owners will have more freedom in pricing, Prasov added.

The FAS opened an antimonopoly case against Booking.com in December last year. This happened after the public organization of small and medium-sized businesses “Support of Russia” contacted the service and complained about the requirements for hotels. Booking.com was given a month to eliminate the violation: the service had to exclude the conditions according to which Russian hotels could not rent out rooms cheaper. However, as reported by the FAS, the company did not comply with the requirements.

Booking.com previously indicated that prices for accommodation properties offered on its website are set not by the platform, but by the partners themselves; the company only provides a “transparent and consistent approach to price comparison.”

On June 17, Opora Rossii prepared amendments to the legislation that would prohibit online hotel booking systems from putting forward requirements for setting a minimum price. She also demanded that operators of online platforms publish in the public domain data on exactly how the ranking of accommodation facilities on the platforms is carried out.

Imposition of services by telecom operator

Often, cellular subscribers do not even know that the operator includes an additional option in their tariff. This becomes known when the amount of telephone bills exceeds the usual amount. Unauthorized activation of additional options and imposition of services on the consumer is illegal.

The Decree of the Government of the Russian Federation No. 328 of May 25, 2005 (clause 21) states that a mobile operator does not have the right to impose additional paid options.

Additional Information

Referring to this regulatory act and the law “On the Protection of Consumer Rights,” the subscriber can write a statement regarding the violation to the operator’s head office. If this action does not take effect, a complaint should be made to Roskomnadzor and other higher authorities.