How to get a replacement product during warranty repairs?

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In accordance with the provisions of the Law on the Protection of Consumer Rights (No. 2300-1 of 06/04/2018), the transfer by the buyer of a low-quality product for repair involves the provision of a replacement product (Article 20,). In what cases can you count on receiving a replacement product during warranty repairs, and how to achieve its acquisition will be discussed in the material.

Normative base

There are two cases described in the PPP law in which the consumer has the right to rely on the use of a substitute product item:

Attention! If you have any questions, you can chat for free with a lawyer at the bottom of the screen or call Moscow; Saint Petersburg; Free call for all of Russia.

1. Clause 2 Art. 20 of the law on ZPP. This legislative norm states that if the consumer sent a written request to the seller/manufacturer for repairs and provision of a similar product item for the entire time, the person who sold the low-quality product undertakes to satisfy it within 3 days. Moreover, an analogue of the product must have identical consumer qualities, and its delivery must be carried out at the expense of the seller.
2. Clause 1 Art. 21 of the law on STDs. If the repair of a product requires a period of no less than 7 days, based on the requirements submitted by the consumer, the manufacturer/seller undertakes to provide a replacement product for the consumer’s use free of charge within three days after receipt of the claim. This rule applies to all product items with the exception of those listed in paragraph 2 of Art. 20 of the law on ZPP.

Buyer's rights and seller's responsibilities

If defects in the goods are discovered during the warranty period, the buyer has the right, at his choice, to demand from the seller (clause 1 of Article 475, clause 3 of Article 477 of the Civil Code of the Russian Federation):

• proportionate reduction in the purchase price;
• free elimination of product defects within a reasonable time;
• reimbursement of their expenses for eliminating defects in the goods.

By free elimination of defects we mean warranty repairs.

In case of discovery of irreparable defects, defects that cannot be eliminated without disproportionate costs or time, or are identified repeatedly, or appear again after their elimination, and other similar defects, the buyer has the right to demand the replacement of goods of inadequate quality with goods that comply with the contract (clause 2 Article 475 of the Civil Code of the Russian Federation).

The Civil Code does not provide for other ways to protect the rights of the buyer in such circumstances. At the same time, it is clear that the injured buyer loses time and also loses the opportunity to use the item he purchased, which entails additional costs or lost profits. The range of problems and feelings is familiar to anyone who has found themselves in a similar situation.

When is a replacement product issued during warranty repairs?

There are two cases when you can count on using an analogue while the main product is under warranty repair:

• the consumer has drawn up a statement addressed to the seller asking him to replace the low-quality product with an identical model or brand;
• the buyer sent a request to the contractor to provide a replacement product item.

As noted earlier, the manufacturer/seller has only three days to satisfy this requirement. Moreover, the first day is not the day of circulation, but the next after it. If the last day falls on a weekend or holiday, it is transferred to the next working day.

IMPORTANT

Each day of delay in providing a replacement product during warranty repairs is accompanied by the need to pay a penalty, which is prescribed in Art. 23 laws on STDs. If consumer requirements are ignored or delays are allowed, the violator will pay 1% of the price of the product item daily.

The law says that all citizens who have submitted an object of purchase and sale for warranty repairs, which will require more than seven calendar days, have the right to replace a product item. If the transfer of a product item for repair under warranty is carried out by mail, the sending of an analogue is carried out in the same way, and delivery is organized by the party that provided the guarantee at its own expense.

If the replacement stock does not contain the required product, the consumer can count on receiving an item with similar consumer characteristics. Many sellers successfully take advantage of this by giving buyers cheaper product items (for example, regular phones instead of smartphones). If repair time is delayed, the consumer has the right to retain the analogue until the repair work is completed in full.

Conclusion

As you can see, starting from 2021, there is an expanded List of durable goods that are not subject to the consumer’s requirement to replace such a product or provide an analogue free of charge during repairs.

The list of durable goods from January 1, 2021 includes:

• gas and gas-electric household appliances used for heat treatment of products and cooking;
• jewelry and other products made of precious metals and/or precious stones, cut precious stones.

How to submit a request for an analogue?

IMPORTANT
A verbal request for a substitution is not enough. In order to count on using a similar product during warranty repairs, the consumer must fill out an application and ensure that it is transferred to the customer service center together with the faulty item.

The design follows the classic template:

• first there is a “header” indicating the contact information of the applicant and recipient;
• then the name of the paper is displayed, it looks approximately as follows: “Application for the provision of a similar product for the period of warranty repair”;
• after this, the main part is drawn up, which indicates a request for delivery of an analogue for the entire period of repair activities under warranty;
• It is not necessary to make references to legislative provisions in this document, but in order to enhance the weight of their own appeal, the consumer can refer to Art. 20. the law on sexually transmitted diseases;
• then the word “please” is indicated, after which all the requirements of the declaring party are indicated in the list format (an important role is played by the mention of the issuance of a replacement product item within a three-day time period);
• upon completion of the paper, a date and signature are placed on it, since without these details it simply does not have legal value.

At the final stage, the service center employee is assigned the obligation to assign a number to this document and certify it with a signature.

Additional questions

Providing the buyer with a phone during repairs

Nowadays, a cell phone is an irreplaceable thing. Most people simply cannot imagine daily existence without it.

But phones often and quickly break down, and for some time a person has to live without it.

What to do when they try to “reanimate” your phone at a service center?

It so happens that citizens often do not even suspect that they have consumer rights. And sellers, accordingly, do not remind about them.

If your phone breaks down and you return it for warranty service, the seller is obliged to give you another one for the duration of the repair.

To exercise this right, write a statement and give it to the seller. The application is written in free form. The phone replacement service is free.

Note! If the seller refuses to comply with your legal request, he faces penalties. What does this mean? Every day the seller must pay the client a penalty, which is equal to 1% of the cost of your phone.

Article 20 of the Law “On Protection of Consumer Rights” contains standards for providing warranty repairs (rules and terms).

Among other things, this article describes the norm for providing the buyer with a similar product during the service of a mobile phone.

This service is provided only at the buyer's request.

A telephone from the replacement fund is issued to the client within 3 days after the product is transferred for repair.

You should not count on the fact that any product is subject to temporary replacement. There is a special list of goods, analogues of which are not issued for temporary use during the warranty period of the client’s product.

This list was approved by Decree of the Government of the Russian Federation No. 55 of January 19, 1998:

• Cars, motorcycles, trailers, etc. The exception is for goods used by disabled people;
• Water transport and pleasure craft;
• A piece of furniture;
• Electrical and medical devices for personal use. Razors, hair dryers, electric blankets and heating pads;
• Weapons (service, civilian).

We remind you that failure to comply with the buyer's requirements will result in the seller having to pay a daily penalty, which is 1% of the value of the goods.

Note! If the contractor does not comply with your request to replace the product with a similar product, or a product from another manufacturer, then he faces a penalty.

To replace a product with a similar one, only 7 days are allocated. Failure to comply with the standards will result in the seller paying a penalty until the buyer receives a replacement (Clause 1, Article 21 of the PZPP).

Repairs are taking too long - what to do?

The Consumer Protection Law specifies that the maximum repair period is forty-five days.

This time period is established by the legislator. The starting point is the day the device is submitted for warranty repair.

The period for delivery of the product by the seller to the service center and its return is included in this time period.

The absence of any details necessary for the work is not grounds for extending the period allocated by law.

After 45 days (it is important that the receipt received upon delivery of the goods indicates the repair period), the citizen may demand:

1. Return the phone to the store and receive the money paid for it.
2. Carry out the procedure of exchanging your old cell phone for a new one (of the same make and model).
3. Penalty payments.

What exactly to demand, a penalty for delaying repairs or replacement of goods, is chosen by the buyer himself. The fine is one percent of the total cost of the product for each day of delay.

If a retail outlet refuses to pay funds, it violates the rights of a citizen. The latter can appeal to the court. If you win, all costs associated with the proceedings will be borne by the seller, and the buyer will be able to receive the funds due to him by law.

Should I be provided with a replacement device during the quality check period?

Let's note two very important details:

• The consumer bears full responsibility for the analogue he received during the repair. Therefore, if you break a replacement product, spoil it, or otherwise render it unusable, you will be subject to retaliatory measures.
• According to consumer protection law, the replacement product must perform all the same functions as your replacement product.

However, it does not have to be absolutely the same.

Who should deliver the similar replacement product? The delivery of a similar product that you are entitled to should be handled by the person who provides warranty repairs. This can be either a seller, a manufacturer, or a service center cooperating with the manufacturer.

When do they have the right to refuse to provide a replacement product?

Government Decree No. 55 of January 19, 1998 contains a list of durable goods that cannot be replaced (at least the service center is not obliged to provide the consumer with analogues instead):

• vehicles, whether cars, motorcycles, boat accessories, boats and yachts, trailers, etc.;
• interior items;
• weapons, in particular firearms;
• electrical household appliances equipped with heat treatment capabilities (toasters);
• toiletries.

Please note
Despite such legislative provisions, some automobile and other service centers take into account consumer requirements and provide replacement product items, however, they are not required to do this during warranty repairs.

What products are included in the List from 2021

Officially, the list under consideration is called “List of durable goods that are not subject to the consumer’s requirement to provide him with free goods that have the same basic consumer properties for the period of repair or replacement of such goods.”

It was approved by Decree of the Government of Russia dated December 31, 2020 No. 2463 as part of the new rules for retail purchase and sale and will be valid from January 1, 2021 to 01.01.2027.

Below we provide a complete list of durable goods from 2021 for which replacement is not issued.

It includes 6 enlarged product groups. Moreover, there are also new ones from 01/01/2021 (highlighted in bold ).

Replacement product during repairs under warranty for a technically complex product

For the entire period of repair work in relation to a product of increased technical complexity, the consumer has the right to demand that another item with identical characteristics and options be provided for temporary use. The deadline for satisfying a claim is similar and is three days from the date of its receipt (but this rule does not apply to all product items).

For your information

To confirm the time during which repairs were carried out, the consumer undertakes to request a supporting document from the seller. If the time period was not displayed, or the consumer did not receive any confirmation at all, the maximum time is equal to 45 days. Without the appropriate document, confirming the date of acceptance of the goods for repair will be problematic.

The duration of repairs carried out under warranty may be increased if this possibility is specified in the agreement. Ignoring deadlines is a common violation. Faced with such circumstances, the consumer can expect to recover the amount of the penalty voluntarily or in court. After the expiration of the time period allotted for repairs, the consumer has the right to demand the return of his funds, which also applies to technically complex goods.

IMPORTANT

The Consumer Rights Protection Law states that a buyer, when sending a technically complex product for repair under warranty, can count on receiving a similar product with the same set of consumer characteristics. GOST R 51303-2013 establishes that consumer property is usually understood as quality, which is manifested in the process of exploitation of the item by the consumer in the course of satisfying needs. Therefore, the seller is not obliged to provide the product of the same model.

Features of durable goods

Based on the provisions of the Law “On the Protection of Consumer Rights,” durable goods are those objects whose service life exceeds 3 years from the date of operation.

Durable goods have the following features:

1. The manufacturer of such goods must necessarily indicate the service life of the product during which it can be fully used. In the event of a breakdown before the expiration of this period, it is the manufacturer who will have to eliminate the defect.
2. During the entire period of operation, the product should not pose a danger to others . If for any reason this happens, the manufacturer is obliged to shorten the established permitted service life.
3. Useful life can be measured not only in months , but also in operating cycles or cases of active use.
4. Manufacturers of durable goods are required to produce spare parts for the goods they sell . The service life of parts must be commensurate with the service life of the main product.

Manufacturers of durable goods are required by law to ensure the availability of goods and their components until the end of their specified service life. In the case where this period has not been determined, the limit on the use of the product is set at 10 years.

Thanks to this decree, consumers are guaranteed the right to use purchased goods for a long time.

Replacement goods for the period of warranty repairs for a legal entity

The right to receive replacement goods during warranty repairs is specified in the ZPP law. This document applies exclusively to individuals. Accordingly, the retail establishment is not obliged to provide a replacement product item to the organization requesting repair of the product.

Attention

However, a legal entity is assigned the right to recover losses associated with the inability to use the goods purchased by it (Article 15 of the Civil Code of the Russian Federation “Compensation for losses”). In addition, if the direct terms of the contract provide for the need to provide a replacement product during warranty repairs, this will still have to be done.

If a commodity item is purchased by a legal entity, the situation may be regulated by the norms of the supply agreement (Article 506 of the Civil Code of the Russian Federation). The terms of this agreement are determined by the interested parties to the transaction. However, the seller, who is interested in preserving the prestige and reputation of the company, can independently add a clause regarding replacement goods to the contract.

Buyer's benefit

In any case, the buyer receives a replacement product for use free of charge, without counter-representation, that is, without additional payment to the seller. Law No. 23001 speaks about gratuitousness. However, in this situation we are not talking about an independent transaction, but about a separate condition of a paid contract (it does not matter whether such a condition is established by law or by agreement of the parties).

The author believes that it is unlawful to isolate and classify a single transaction from a purchase and sale transaction. It is appropriate to make a comparison: a supply agreement may contain a delivery condition, but such delivery is not considered an independent transportation activity (Article 458, Article 510 of the Civil Code of the Russian Federation; clause 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 5, 2013 No. 157).

Tariffing for each individual action within the framework of a single contract is not carried out. Moreover, the seller has the opportunity to provide for such costs in advance (for servicing low-quality goods) through a reserve for future expenses (example 3 of Appendix 2 of PBU 8/2010).

On a note

The seller is obliged to transfer to the buyer goods suitable for the purposes for which goods of this kind are usually used (Clause 2 of Article 469 of the Civil Code of the Russian Federation).

Now let's take the buyer's position. For taxation purposes, for calculating profit tax or personal income tax, income is recognized as economic benefit in cash or in kind, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed (Article 41 of the Tax Code of the Russian Federation) . In accounting, income is also recognized as an increase in the economic benefits of an organization (clause 2 of PBU 9/99).

What do we see in reality? Having received the goods for temporary use, the buyer did not receive any economic benefit. He was only compensated for losses and inconveniences, and even then partially. As a result, according to the author, taxable income for buyers - mind you, on the basis of their identification of deficiencies in the purchased product! - no and cannot be.

Consequently, legal entities that operate substitute goods for free do not recognize non-operating income in tax accounting (clause 8 of Article 250 of the Tax Code of the Russian Federation), and in accounting - other income (clause 7 of PBU 9/99). And for individuals there is no object of personal income tax taxation (subclause 2, clause 2, article 211 of the Tax Code of the Russian Federation).

Let us emphasize once again: the buyer is not provided with a separate free service for using the item. Therefore, there can be no talk of any benefit for him. It is equally possible to recognize the economic benefits of warranty repairs. Fortunately, no one thought of this before.

When can I file a complaint?

If the store does not provide a replacement product item during the repair of the product under warranty, there are no operational ways to influence it. But there are 2 main options:

• writing a claim for a penalty for the fact of delay in issuing a replacement in the amount of 1% for each day of delay;
• filing a complaint with ROSPOTREBNADZOR, which will give you an answer within 30 days (since during this time the service center usually has time to repair the product, this action is not always advisable).

That is, if the seller, in accordance with the law or the terms of the contract, is obliged to provide a replacement product during warranty repairs, but he did not do this, or did so, but with incomplete compliance with the rules, the consumer has the right to file a claim.

It should contain the following data:

• names/names of the parties – seller and buyer;
• date of purchase of the product item, delivery for repairs, estimated period of repair activities;
• specific requirements presented by the consumer;
• signature.

for failure to provide replacement goods.

Tax consequences for the seller

In accordance with paragraph 1 of Article 689 of the Civil Code, it is unlawful to classify the transfer of replacement goods to the buyer as an agreement for gratuitous use (loan). After all, the transfer of a thing for temporary use within the framework of a loan agreement is not conditioned by anything, that is, it obviously does not presuppose the initial conditions for such a transfer. But in our situation, there is a fundamental condition - in order to obtain the right to use a replacement product, first buy a low-quality product!

Civil regulation of relations regarding the transfer of substitute goods can be carried out by analogy (Article 6 of the Civil Code of the Russian Federation).

But in tax legislation analogies are not practiced. The Tax Code is a document of direct effect, and all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer (clauses 6, 7 of Article 3 of the Tax Code of the Russian Federation).

On a note

Taxes and fees must have an economic basis and cannot be arbitrary. Taxes and fees that prevent citizens from exercising their constitutional rights are unacceptable (Clause 3, Article 3 of the Tax Code of the Russian Federation).

Based on the above, the transfer of replacement goods cannot be regarded as the provision of services free of charge. Therefore, in connection with such an operation, an object of VAT taxation does not arise (subclause 1, clause 1, article 146 of the Tax Code of the Russian Federation). Manipulating the “free of charge” characteristic from Law No. 23001 is unlawful.

In the same way, the rule of paragraph 16 of Article 270 of the Tax Code does not apply, according to which expenses in the form of the value of gratuitously transferred property rights and expenses associated with such transfer are not taken into account for income tax.

What is a replacement stock of goods?

Replacement fund of goods is a reserve in which goods of substitution value are stored. That is, when handing over, for example, equipment for repair, the consumer can count on being provided with an item with identical consumer properties. In order to take this product and provide it to the buyer during warranty repairs, the seller turns to the replacement fund to find the item he needs.

For your information

So, if the estimated repair period for a product under warranty exceeds 7 days, in accordance with the provisions of Art. 21 of the Law on ZPP, the consumer has the right to demand a replacement. In the accounting department of an enterprise, when creating a PF, certain entries are made. The first of them is Dt10Kt41. And the fact of transfer of goods from the PF to the consumer is recorded by the entry Dt10Kt10.

Responsibility of the consumer for damage to the replacement product

Despite the fact that the analog product is handed over to the client free of charge, during the period of operation he bears full responsibility for it.

If, through your fault, the product given to you in exchange for the one that is being repaired is broken, lost or scratched, then you will have to pay money for the damage caused.

All items included in the replacement fund are not new. Most likely, they have already been used before you, and more than once. Therefore, when receiving a replacement product, be sure to check its appearance, contents, as well as functionality and include all important details in the acceptance certificate that you will conclude.

If the analogue was damaged during its operation and for this reason the seller refuses to return the product being repaired to you, you can go to court, since this action is illegal:

• First, if you are truly at fault for the replacement item breaking, then you simply have to pay for it. In this case, the store does not have the right to retain the item that belongs to you. If the seller does not make contact, wait until the warranty repair period expires (45 days) and then submit a request for a refund for the product. The store, of course, will refuse you this, and then you can safely go to court, which with a 99% probability will resolve the case in your favor.
• Secondly, if the breakdown was not your fault, you can also go to court. In this case, an examination will be carried out, and all costs will be borne by the losing party.

Now, knowing all the nuances, you can safely demand the provision of a similar product for temporary use if your item is sent for warranty repair or if you are waiting for a replacement for a defective purchase.

Fine to a store for not providing replacement goods

If a company that has an obligation to provide a similar product for the warranty period has not fulfilled it, or has not fulfilled it in full, it is obliged to pay a penalty in the amount of 1% of the price of the device being repaired per day. If the company rejects this requirement, the consumer retains the right to file a claim in court, and a photocopied version of the act must be attached to the application.

If administrative proceedings are initiated in the case, in accordance with Art. 14.15 of the Code of Administrative Offenses of the Russian Federation (it regulates situations related to violations of the sale of certain types of commodity items) and Federal Law No. 55 of January 19, 1998, a fine will be imposed. The size is a maximum of 30,000 rubles. for legal entities and 1-3 tr. for individual entrepreneurs.

In what cases is a replacement product provided?

The consumer has the right to expect to receive a replacement product in the following cases:

1. A written application was made to the seller to replace the defective product with a product of the same brand and model. If the replacement period exceeds seven calendar days, it is necessary to replace the product with a product with similar basic characteristics.
2. A request has been sent to the responsible organization to provide a replacement product for the entire period of repair work under warranty.

Arbitrage practice

If we analyze court proceedings in these disputes, practice shows that penalties imposed on individual entrepreneurs rarely exceed 1,000 rubles. In addition, the guilty parties often try to find justification for their actions. Refusing to pay a penalty, they rely on the fact that the product is in service for 20-30 days awaiting parts, while repairs under warranty last 2-3 days. It turns out that the company is not at all obliged to provide an analogue product, since the repair period is less than 7 days. Therefore, many controversial situations arise.

Nuances

The main point of concern to consumers is the functionality of the provided analogue during the warranty repair. In the case of technology, for example, sellers often provide consumers with goods of lower quality (for example, a NOKIA feature phone in exchange for a Sony smartphone). On the one hand, the properties of the provided product item are similar, on the other hand, with NOKIA you can only send messages and make calls. If the buyer disagrees with the seller’s position, he has the right to appeal this action and demand the provision of an identical model.

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Providing a replacement phone under warranty

A telephone is a technically complex mechanism. If you send it in for warranty repair in the event of a breakdown, you can count on temporarily receiving a device that will have the same consumer properties.

In practice, disputes regularly arise about what specific characteristics an analogue should have. Stores are often of the opinion that the main function of a mobile phone is making calls. And they often give simple models instead of modern smartphones. Such a decision can be appealed in court by presenting evidence that the phones have significant functional differences.

Requirements for the replacement provided

For a smartphone, the main properties for the consumer are:

• the ability to make calls and send messages;
• Screen size;
• touch or key keyboard;
• possibility of using high-speed Internet;
• number of SIM cards;
• video camera quality.

If these characteristics of the proposed device do not correspond to the functions of the phone sent for repair, this may be considered a violation. But don't count on the seller to provide the exact model. The buyer will receive any other smartphone with similar functions.

What to do if they don’t give you a replacement

When the seller deliberately delays the delivery of replacement goods, you need to contact him with a written request to pay a penalty in accordance with Art. 23 STD. If the store continues to ignore, then you should turn to the judicial authorities to resolve the conflict.

It happens that the manager refuses to issue a replacement, citing the lack of a specific type of product. The buyer has the right:

• file a complaint with the Rospotrebnadzor office;
• file a statement of claim in court.

How to write an application

It is compiled in free form, although some stores and manufacturers have their own templates for such a document.

At the top of the application the following must be written:

• applicant’s information indicating the address of residence (it is advisable to provide a telephone number);
• seller's name.

The main part of the document should describe:

• when, where and what product was purchased, indicating the brand, model and other characteristics;
• when and why it was sent for repair;
• conditions that the analogue must meet.

At the bottom of the document is a signature with a transcript and the date of completion.

KNOW! The application is written in two copies: one is sent to the recipient, the other remains with the buyer. The document can be delivered in person and asked the receiving party to sign for receipt or sent by registered mail.