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

Violation of delivery deadlines penalty

In most cases, these situations occur:

when there is a failure to comply with the essential terms of the supply agreement;
if there has been a violation of the terms of the agreement to a significant extent

In this case, liability may be imposed, which can be either legal or contractual penalties.
Under the circumstances specified in the law, a refusal may occur from a party who does not want to fulfill the terms of the contract.

There are also consumer protection laws that can regulate actions that violate deadlines. Article 28 specifies all obligations for violation of the terms of the contract that the supplier will bear. As soon as the supplier has exceeded all deadlines for fulfilling the obligations of the contract, the customer has several options for action. For information on what a contract for the supply of goods looks like, see this article.

First, you will need to complete the procedure for processing the payment of the penalty; it is 0.5%, which is charged from the amounts that were paid for the ordered goods.

Once this action is completed, it will be necessary to discuss new deadlines with the supplier. within which the supplier will have to deliver the goods.

Also, the buyer can demand from the supplier the return of funds that the latter received for goods that were not delivered on time.

In total, the penalty amount is 3%, it can be calculated on the basis of the funds that were paid by the client for the services provided. The penalty will be charged for each day of delay. The buyer's rights include the ability to demand the establishment of new deadlines during which the supplier must fulfill all obligations. In addition, the buyer may demand payment of funds that were contributed towards the execution of the work. The buyer can also claim to terminate the agreement, but the buyer will not have to compensate the supplier for losses.

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).

Goods not delivered - judicial dispute resolution procedure

Any supply agreement (contract) provides for a procedure for resolving disputes when the claims procedure does not help. In the case of legal entities and entrepreneurs, such a means of resolving the dispute is an appeal to the arbitration court with a statement of claim.

To do this, you will need to create a reliable and substantiated evidence base and transfer all documents relating to the transaction:

supply agreement;
acts of acceptance and reconciliation;
money orders;
calculations of losses/penalties;
and so on.

The court can have a significant impact on the supplier by forcing him to pay damages and penalties, including by transferring documents to initiate enforcement proceedings.

Therefore, in order for the claim to be satisfied, it is necessary to comply with the conditions of procedural legislation, in particular on the issue of drawing up an application and forming an annex to it.

Several stages of applying to the arbitration court are defined in a situation where the goods are not delivered on time or at all.

Collection of documents for presenting requirements to the supplier

The first step is collecting documents, the list of which includes the following:

an agreement or contract confirming the existence of relations and obligations under the transaction; if such documents are missing, then other confirmation of the agreement will be required (receipts, payment orders, etc.);
detailed calculation of losses (penalties), which must be presented in the form of a separate document, certified by the signature and seal of a legal entity (entrepreneur);
information establishing the fact of fulfillment of obligations on the part of the plaintiff, that is, the buyer (payment for the goods or part thereof), or documents confirming the violation of the terms of the transaction by the defendant seller;
confirmation of the grounds for filing a claim (for example, an acceptance certificate showing that the delivery was made late, and therefore damage to the plaintiff arose);
a claim confirming compliance with the pre-trial procedure, a response to it (if any) and a receipt establishing the fact that the document was sent to the defendant;
a receipt for payment of the state duty, determined according to the price of the claim, that is, the amount of the claims submitted in accordance with the Tax Code of the Russian Federation;
a document establishing the fact of sending or personally transferring the second copy of the claim to the defendant seller.

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The package of documents can be extensive. In each specific case, depending on the nature of the transaction, different information may be sent.

For example, if the supplier did not deliver the goods and the buyer suffered losses, then it is enough to confirm the fact of the conclusion of the transaction (agreement or contract), establish attempts to resolve the dispute and come to an agreement (claim, business correspondence) and calculate the amount of recovery.

All other aspects can be covered by the defendant if he tries to object to the counterparty’s claims. The burden of proof lies on both sides. The plaintiff must provide the grounds for filing a lawsuit, and the defendant must justify the failure to fulfill obligations. A passive position does not benefit the parties to the dispute.

The goods were not delivered - we draw up and submit a statement of claim

If the documents are prepared, then you need to file a claim. This is done in accordance with the requirements of procedural legislation. It is necessary to pay attention to the content of the document, its validity and comprehensiveness.

In this case, the application is drawn up in simple written form, transmitted in person, by mail or through electronic resources. Arbitration courts can consider a dispute in absentia, which involves conducting the entire process through the official website of the authority.

The condition for consideration in absentia is the price of the claim; it should not exceed 200 thousand rubles.

Filing a claim is an important process. Compliance with the terms of the law is necessary. Even at the initial stage, the application may be returned, left without movement or consideration.

That is why you will need to carefully approach the process of forming a claim. It doesn’t matter if lawyers help with this, in-house or outside.

The main thing is not to try to draw up a statement of claim yourself, relying on data from the Internet. They may not be accurate or you may misinterpret them.

The specialist knows exactly which legal norms to refer to when covering a specific situation, and will create an attachment to the application in accordance with the requirements.

For assistance in drawing up a statement of claim, as well as protection of interests in arbitration court by a lawyer until the result is achieved, you can contact:

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Compensation for damage resulting from the lack of delivery of goods occurs according to the general rules of the Civil Procedure Code and the Arbitration Procedure Code of the Russian Federation. The court makes a decision during the proceedings, which lasts up to two months, in rare cases extended by a month. After which the parties have the opportunity to appeal the verdict.

One month is allocated for this. It will no longer be possible to change the decision. Forced recovery of losses under a supply agreement is also carried out according to the rules of enforcement proceedings; arrest may be imposed on all property of a legal entity or entrepreneur acting as a seller.

Separately, it should be said about the need to participate in trials. Since we are talking about business representatives, it is better to involve attorneys - lawyers who can defend the interests of the organization in court.

It is not worth ignoring subpoenas or taking a passive position, silently agreeing with the counterparty’s arguments. Every doubt of the court can be considered in favor of the party that was able to substantiate its position.

Requirements for filing a claim

The first step to success in litigation is a well-drafted statement of claim. Organizations that do not have lawyers on their staff are forced to turn to third-party specialists, which is right.

Independent attempts to formulate a justified and legally competent statement in practice end in failure.

If the terms of delivery of goods are not met, the claim on the part of the buyer will not have any fundamental differences in comparison with other controversial situations requiring judicial consideration. The first condition is the reflection in the claim of the nature of the dispute, the grounds for recovery and information about the entrepreneurs.

According to the general rules of civil legislation (Article 131 of the Civil Code of the Russian Federation), as well as certain situations from practice, it is necessary to indicate the following information in the claim when trying to recover damages for failure to fulfill an agreement on the supply of products:

the name of the arbitration court indicating the region where the claim is sent (the body is determined by the location of the defendant or the place where the supply agreement was concluded);
information about the plaintiff-buyer of the goods, since this is either an organization or an individual entrepreneur, then in this case the full and abbreviated name of the person, his legal and actual address, contact details, INN, OGRN, KPP, as well as details for transferring funds are indicated;
information about the second party to the dispute – the defendant-seller, which is identical to the information provided about the plaintiff;
the price of the claim and the amount of state duty paid, which can also be recovered from the defendant as legal expenses when the claim is satisfied (information is indicated in the header of the document);
the circumstances of the legal relationship, the date of conclusion of the contract, the terms of delivery under the transaction, a description of the nature of the violation of the agreement by the defendant;
grounds for going to court, reference to clauses of the contract or agreement confirming non-compliance with obligations;
explanation of the evidence presented reflecting payment for the delivered goods, its acceptance or the seller’s direct refusal to deliver in business correspondence, and so on;
references to legal norms that allow you to go to court and demand compensation for losses and payment of penalties;
an indication of the calculation of losses to be recovered due to the fact that the goods were not delivered;
the plaintiff’s claims providing for the recovery of damages, penalties, penalties, as well as legal expenses;
signature of the applicant or his representative by proxy, as well as the date of drawing up the application.

The claim must include an appendix that reflects the full list of documents sent to the court along with the application.

Moreover, each party has the right to supplement information during the entire trial. The court may also request additional information if the material submitted is not sufficient to establish the truth.

You can file a claim using the link: Statement of claim for recovery of the cost of paid but not delivered goods

Thus, violation of the terms of the supply contract by the seller may lead to a judicial settlement of the dispute and forced recovery of damages.

The buyer may suffer losses if the product is not received on time, or a penalty if the fact of delay is recorded. However, before protecting interests in court, it is necessary to go through a claim procedure, which allows you to save time and money on resolving the dispute between the parties to the relationship.

If you need the help of a highly qualified lawyer, then contact the legal department. The first consultation, assessment of the situation and forecast of the success of the case is provided free of charge.

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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.

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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).

Letter of refund due to non-delivery of goods

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Pre-trial stage

Going to court is a measure used if it is impossible to resolve disagreements between the parties to the agreement through negotiations. The Administrative Procedural Code of the Russian Federation states that economic disputes can be referred to arbitration only after compliance with the pre-trial settlement procedure.

For a buyer who is an individual, it is necessary to send an application to the seller for a refund of the money received in the form of an advance. Legal entities and entrepreneurs send a written claim to the counterparty for non-delivery of paid goods, which indicates the violated terms of the transaction, and offers to return the money received on the paid invoice for the unfulfilled delivery. If this condition is not met, the judge may refuse to accept the application.

The period for consideration of a written claim is established in the agreement. If the time frame is not defined, then you can file an application with the court 30 calendar days after sending the claim.

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Interactive list. Start typing the word you are looking for. Meaning T. Efremova New dictionary of the Russian language. Explanatory and word-formative. Failure to deliver somewhere Dictionary of Russian synonyms. Dictionary of Russian synonyms 4.

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