The Arguments Against Consumer Claims: Which Work and Which Don't

The company is not obligated to respond to the complaint

This is true.
The Law on the Protection of Consumer Rights (hereinafter referred to as Law No. 2300-1) does not oblige sellers and manufacturers to respond to consumer complaints. So the company is not obliged to send a letter to the person in response; no one will punish the company for its absence.

However, one should not confuse a response with a reaction to a complaint.

If the consumer is right, then the company is clearly obliged to respond. That is, to fulfill the requirements set out in the claim or the part thereof that is actually justified, if the requirements are excessive.

Moreover, Law No. 2300-1 sets specific deadlines for the reaction (Articles 21, 22, 31):

1) replace the product:

• 7 days - as a general rule;
• 20 days - if an examination is needed;
• 30 days - if a similar product is not available;

2) return the money:

• 10 days.

The deadlines are counted from the day the demand is presented, that is, the claim. The day of its presentation is not the day of dispatch, but the day of receipt by the store (Appeal ruling of the Moscow City Court dated December 2, 2013 No. 11-36573).

Official website of the Nevyansk urban district

Before stating your requirements through a claim procedure, try to talk with the seller (manufacturer), since it is possible that your requirements will be satisfied without any special “problems”. If they don’t meet you halfway, then file a claim.

When writing a complaint, first decide on your requirements. To do this, it is advisable to choose some main - the most significant drawback in the product or in the quality of the service provided. To clearly understand what you want from the seller or performer, you should familiarize yourself with the basic consumer rights guaranteed by law. This is where your requirements will flow.

Basic consumer rights:

- for quality;

— for safety;

- for information;

- for damages.

The right to quality means that the seller must transfer a high-quality product to the consumer, and the contractor must perform the work (provide a service) with high quality.

Right to safety: the consumer has the right to ensure that the product (work, service) is safe for life, health, property of the consumer and the environment. The requirements that must ensure this are mandatory and are established in the manner determined by law (Clause 1 of Article 7 of the Law of the Russian Federation “On the Protection of Consumer Rights”).

Right to information: the consumer has the right to necessary and reliable information about what is being sold, who is selling it and who made it, how and when it can be purchased. Based on this information, we must obtain an accurate understanding of the manufacturer (performer, seller) in order to contact him, if necessary, with the appropriate requirements, and about the goods (works, services) for their correct selection.

The right to compensation for damage: for violation of consumer rights, the seller (manufacturer, performer) bears responsibility provided for by law or contract (Article 13 of the Law of the Russian Federation “On the Protection of Consumer Rights”). If the contract provides for liability in a larger volume or a penalty in a larger amount than provided by law, then the terms of the contract are applied.

The claim is made in 2 copies, one of which remains with you.

Indicate the exact name of the company and its address. This data must be indicated in documents, which must be located in the “Consumer Corner” on the sales floor or in the company’s office.

Please provide your details: full name, address, phone number.

Briefly outline the essence of the conflict situation that has arisen.

For the fastest solution (an examination may be required), indicate one of the most significant, in your opinion, defects in the product or the fact of poor-quality service.

State your requirements: refund, replacement of goods, reduction of the purchase price or cost of the service (your choice).

Be sure to indicate a realistic deadline for fulfilling your requirements. Usually this is 10 calendar or working days.

Enter the number and signature.

Attach photocopies of the documents you have to your claim: checks, contracts. Do not give away the original under any circumstances! He must stay with you.

So, imagine a situation where the product you purchased turned out to be of poor quality. Clause 1 of Article 18 of the Law “On Protection of Consumer Rights” gives the consumer the opportunity to choose, at his own discretion, to demand:

— free elimination of product defects or reimbursement of expenses for their correction by the consumer or a third party; proportionate reduction in the purchase price;

— replacement with a product of a similar brand (model, article);

- replacement with the same product of a different brand (model, article) with a corresponding recalculation of the purchase price.

Instead of presenting these demands, the consumer has the right to refuse to fulfill the purchase and sale agreement and demand the return of the amount of money paid.

Protection of consumer rights when performing work (rendering services) is regulated by Chapter III of the Law “On Protection of Consumer Rights”, therefore, possible consumer claims against the contractor are regulated not by Article 18, but by Article 28 of the Law:

- assign a new term to the contractor;

- entrust the performance of work (provision of services) to third parties for a reasonable price or perform it on their own and demand reimbursement from the contractor for expenses incurred;

— demand a reduction in the price for performing work (providing a service);

- refuse to fulfill the contract for the performance of work (provision of services).

The consumer also has the right to demand full compensation for losses caused to him in connection with violation of the deadlines for completing the work (rendering the service). Losses are compensated within the time limits established to satisfy the relevant consumer requirements.

It is also necessary to take into account the specifics of regulating the presentation of claims in relation to certain goods (services, works), specified in the Law “On the Protection of Consumer Rights”. See: Law “On Protection of Consumer Rights”, List of technically complex goods in respect of which the consumer’s demands for their replacement are subject to satisfaction if significant defects are found in the goods, List of durable goods that are not subject to the buyer’s requirement to provide him free of charge for a period repair or replacement of a similar product and other provisions of regulations governing the protection of consumer rights.

In the complaint, in order to avoid formal reasons for the seller to delay the resolution of the issue, it is advisable to indicate only one of the above requirements.

In conclusion, you can indicate to the seller (executor, etc.) your intention to file a claim in court if your requirements are not satisfied within the time period set by you (the minimum terms are established in the Law “On the Protection of Consumer Rights”).

The claim is drawn up in two copies. It can be submitted in two ways: by registered mail with delivery notification or directly to the seller (it should be taken into account that in order to subsequently establish the date of filing the claim, your copy of the claim must have a note from the seller (performer) about receipt of this claim). Wherein:

— Take one witness with you. Maybe even a close relative. His testimony will also be sufficient for the court.

— In the presence of a witness, submit the claim to an entrepreneur or employee of the company. If they refuse to accept the claim (they are unlikely to refuse in the presence of a witness), simply leave the claim on the counter or on the desk of an office employee. In this case, the witness must write on your copy of the claim that they refused to accept the claim and it was left with the department. The witness indicates his passport details, the date and signs.

— If you are offered to leave the goods in the department for examination, you can leave it immediately, only the seller must make the appropriate mark or give a receipt on your copy of the claim. However, if you are not sure of the seller’s integrity and that he will keep your goods in proper condition, it is better not to give the item back, but to offer to bring it directly to the expert on the day of the examination.

There is no need to be afraid of examination. Cases when entrepreneurs try to “resolve” issues with an expert “amicably” and not for free are rare. Experts value their reputation and work and will not commit a crime over such a trivial issue. And it is simply more profitable for an entrepreneur to give in to the demands of the consumer than to “resolve issues” with an expert. In addition, a repeated independent examination can always be ordered (by the court or at your request).

When all the preliminary stages have been completed, all that remains is to wait. Wait for the period specified in the claim. The very next day after this period has expired, you can draw up and send a statement of claim to the court.

The claim requires the goods along with money

It's a valid point, it shouldn't be like this.
The consumer can demand or exchange the product for a similar one, or accept it back and return the money.

He has no right to ask for both at the same time. This would be unfair, which is why law No. 2300-1 does not provide for it.

Consequently, if the seller sees that the claim contains two specified requirements at once, then he has the right to consider them mutually exclusive and not satisfy either one or the other.

The company cannot choose which of them to satisfy at its own discretion, since the law does not authorize it to do so. The right to choose a claim is the sole prerogative of the buyer.

Taking into account the above, when faced with a claim of mutually exclusive content, the organization has the right to leave it without satisfaction until the consumer clarifies his intentions (Appeal ruling of the Moscow City Court dated January 18, 2018 No. 33-1447/2018).

The claim was not received by the organization

A good argument.
The court may recognize it if the consumer fails to refute it. That is, it will not present to the court evidence that the claim was sent and delivered, and company representatives will deny in court that they received the letter by mail or that the citizen brought it personally to the organization’s office (Appeal ruling of the Moscow City Court dated October 4, 2016 No. 33-38862 /2016).

If a person provides evidence of sending a claim to a legal address or attempting to serve it in person, then the court will take his side. For example, the consumer can show his copy of the complaint, on which witnesses confirmed with their signatures that the company representatives refused to sign for receipt of the claim (Appeal ruling of the Moscow City Court dated June 28, 2018 No. 33-27889/2018).

Where to complain

There are several government bodies authorized to solve consumer problems and protect their rights. Each case is individual and depends on the specific situation.

Let's find out where and in what cases you should contact:

You can also complain to the police, prosecutor's office or judicial authority.

The claim was submitted only orally

A good argument, but in practice, as a rule, it does not work.
The fact is that Law No. 2300-1 does not oblige consumers to express their complaints in writing. Therefore, judges count both the claims presented and the claims presented orally by citizens. True, provided that this is somehow confirmed.

For example, after a consumer’s request, the store sent the product for examination (Appeal ruling of the Moscow City Court dated June 2, 2017 No. 33-20220/2017). Or the claims were expressed by a person on the hotline, and the conversation with the operator was recorded (Appeal ruling of the Moscow City Court dated December 6, 2016 No. 33-48850/2016).

How to write a complaint correctly

There is no specifically approved claim form, but when drawing up a document you must adhere to certain rules. The complaint is made in writing; a person can fill out the complaint with his own hand, or type the text on a computer.

The content of the document should have the following points:

1. name of the organization to which the application is being submitted;
2. passport information about the applicant (full name, passport details);
3. a detailed description of the product purchased or service received;
4. reference to circumstances confirming violation of consumer rights;
5. the day of the purchase and sale transaction;
6. position, surname and name of the employee who violated the current standards;
7. put forward their demands, for example, to eliminate problems related to the sanitary and epidemiological well-being of the population.

Copies of supporting documents must be attached to the application, these may be:

• a copy of the service agreement;
• check or receipt for payment;
• warranty card, etc.

Important!
It is necessary to ensure the safety of existing original documents. It is extremely rare, but the attached documents may be lost by supervisory authorities. Checks quickly fade, so if you consider the issue for a long time, there is a danger of being left without evidence. Download a sample complaint to the consumer rights protection department

The claim came only by email

A similar argument, and also usually not accepted by the courts.
Filing a claim by email to a company is acceptable if its address is indicated in the contract or on the organization’s website. In this case, the courts take into account whether the company responded. If she entered into correspondence, then this fact confirms that the claim was received (Determination of the Moscow City Court dated October 19, 2018 No. 4g-12927/2018).

Moreover, an electronic claim is recognized if the contract or work order stipulates that the parties can exchange SMS messages or email about the progress of the contract (Appeal ruling of the Moscow City Court dated February 28, 2019 No. 33-5010/2019).

Grounds for filing a complaint

Citizens think that they can only complain if they purchase low-quality goods or services in a store. In fact, this is not the case; there are many reasons. And the sphere of activity where violations of citizens’ rights occur is different.

In particular, the consumer may be dissatisfied with the following:

• a defective product was purchased, and the seller refuses to exchange for identical products or return the money;
• other violations in the field of sale of goods;
• the purchased tour does not correspond to the description specified in the contract;
• the insurance company violates the terms of the contract for the provision of services (does not transfer insurance payments, the terms of compensation are violated);
• poor-quality medical or utility services were provided;
• The imposition of the services provided was revealed on the part of banking institutions.

Citizens began to complain more often about the management company and express their dissatisfaction with the services provided. The tenants' claims are due to the following reasons:

• utility companies do not eliminate existing problems with water supply;
• violations were detected in the operation of the garbage chute or during waste disposal;
• the company violates the rules for maintaining an apartment building;
• inflated tariffs are set for services provided, or the invoice includes work that is not provided.

The list can be listed endlessly; if necessary, you can consult a lawyer. The specialist will tell you whether consumer rights are really being violated and where to report an unscrupulous organization.

The claim was accepted by an unauthorized employee

The argument seems reasonable, but it doesn’t work.
According to the judges, it does not matter who exactly accepted the claim (the CEO or the seller). The main thing is that in principle it was received by the company (Appeal ruling of the Moscow City Court dated September 22, 2017 No. 33-37991/2017).

Courts use Article 165.1 of the Civil Code of the Russian Federation on the delivery of legally significant messages. It says that such a message (the claim also applies to it) is considered delivered even if it is received by the person to whom it is sent, that is, the addressee.

Therefore, the companies’ reference to the fact that a postal employee, be it Russian Post or DHL, when handing over an envelope with a claim, was not convinced of the authority of the receiving employee and did not ask to show a power of attorney, is not accepted by the courts. The claim was delivered to the company’s address, this is enough (Appeal ruling of the Moscow City Court dated 03/06/2019 No. 33-10391/2019).

Non-food product of inadequate quality

Non-food products of inadequate quality can be returned:

• For the period of the warranty period or expiration date (clauses 3, 4 of article 477 of the Civil Code of the Russian Federation, clause 1 of article 19 of the Civil Code of the Russian Federation).
• If a guarantee for the product is not established: for any reasonable period, but not more than 2 years from the date of receipt of the goods, unless a longer period is determined by law or the parties (clauses 2, 5 of article 477 of the Civil Code of the Russian Federation, clause 1 of article 19 of the Law of the Russian Federation) .
• For technically complex household goods with a warranty period of at least one year (Clause 1 of Article 18 of the Labor Code), the return period is 15 days.

Consumers ask, is it really possible to return a product within 10 years? It is possible, but there is a nuance.

Alexander Borisov

Deputy Head of Roskachestvo

– There are warranty periods and product service life, which are not the same thing. If there is no warranty period, and the product itself is designed for long-term use, then in this case, if significant defects are found in a product with an unknown service life, the purchaser has the right to make claims to the manufacturer for 10 years according to the rules of Art. 19 ZPPP. If the defect is not eliminated, you can return the product to the manufacturer, demanding a refund of the money spent.

The company was ready to satisfy the claim

The effectiveness of this argument depends on whether the firm could actually satisfy the claim.
In itself, such an impulse does not count, since Law No. 2300-1 requires that the consumer’s demands be fulfilled, if they are justified. That is, no later than on the 7th day, the goods must be replaced, or no later than on the 10th day, the money must be delivered in cash or transferred to an account.

The response to the claim that the company was ready to pay is not recognized by the courts as fulfillment of the claim. After all, the calculation has not actually been made. The intention to satisfy the consumer’s demand without actually transferring funds to him is not the fulfillment of an obligation, and therefore cannot be the basis for exemption from paying a fine (Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 13, 2018 No. 80-KG18-10).

At the same time, in order to replace the product or return the money, the company must have a real opportunity to do this.

Therefore, the situation will be different if the company would be happy, for example, to exchange a defective product for a quality one, but the consumer did not provide it with such an opportunity. Let's say he did not come to the store with a claim to replace the product, but sent his complaint by mail. However, after the company sent him a letter in response saying that it was ready to make a replacement, he never came. Then the court should not impose any fine on the company for failure to satisfy the claim voluntarily (Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated July 31, 2018 No. 32-KG18-16).

What are the deadlines for filing a claim for consumer protection?

What are the deadlines for filing a claim for consumer protection?

The deadline for filing a claim to protect consumer rights depends on the grounds and essence of the claim.

1. Deadlines for filing claims regarding defects in goods

The deadline for submitting established claims regarding defects in a product (for example, to eliminate defects, to replace a product or to return the money paid for it) depends on the type of product, whether it has a service life, warranty period or expiration date, as well as whether the detected defects in the product are significant.

Service life is the period during which the manufacturer (performer) undertakes to provide the consumer with the opportunity to use the product (work) for its intended purpose and bear responsibility for significant deficiencies in it (clause 1, article 5 of the Law of 02/07/1992 N 2300-1 “On protection of consumer rights" (hereinafter referred to as Law No. 2300-1).

The shelf life is the period after which the product (work) is considered unsuitable for its intended use (Clause 4, Article 5 of Law No. 2300-1).

The warranty period is the period during which, if a defect is detected in a product (work), the manufacturer (performer) or the seller are obliged to satisfy the consumer’s demands, in particular, for the exchange of goods or the return of money paid for it, or the free elimination of defects in the product (work) ( Clause 6, Article 5, Clause 1, Article 18, Clause 1, Article 29 of Law No. 2300-1).

1.1. Deadlines for filing claims for defects in goods for which a warranty period or expiration date has been established

As a general rule, the consumer has the right to present claims to the seller (manufacturer) of the product regarding its defects if they are discovered during the warranty period or the shelf life of the product (Clause 1 of Article 19 of Law No. 2300-1).

Calculation of the warranty period, service life and shelf life of the product

The warranty period for the goods is calculated from the day the goods are transferred to the consumer, unless otherwise provided by the contract. If the day of delivery cannot be determined, this period is calculated from the date of manufacture of the goods.

For seasonal goods (shoes, clothing, etc.), the warranty period is calculated from the onset of the corresponding season, the onset of which is determined by the constituent entities of the Russian Federation based on the climatic conditions of the location of consumers. When selling goods by samples, by mail, and also if the moment of concluding the sales contract and the moment of transfer of the goods to the consumer do not coincide, the specified period is calculated from the day of delivery of the goods to the consumer.

Similar rules apply to calculating the service life of a product.

The shelf life of a product is determined by the period calculated from the date of manufacture of the product, during which it is suitable for use, or the date before which the product is suitable for use (clause 2 of Article 19 of Law No. 2300-1).

If the warranty period provided for in the contract is less than two years and the consumer discovers defects in the goods after the expiration of the warranty period, but within two years, he can make a claim to the seller (manufacturer) if he proves that the defects arose before the goods were transferred to him or for reasons that arose before this moment (clause 5 of article 19 of Law No. 2300-1).

1.2. Deadlines for filing claims for defects in components and components of goods with a warranty period

Sometimes, in addition to the warranty period for the main product, an independent warranty period is also established for components and components of the product. If it is less than for the main product, the consumer has the right to make claims for defects in the component product and component of the product if they are discovered during the warranty period for the main product (unless otherwise provided by the contract).

If the component product has a warranty period longer than the main product, claims for defects in the product can be filed if defects in the component product are discovered during the warranty period for it. The expiration of the warranty period for the main product in this case does not matter (Clause 3, Article 19 of Law No. 2300-1).

1.3. Deadline for filing claims for defects in goods for which a warranty period or expiration date is not established

Demands for low-quality goods for which a warranty period or expiration date have not been established are made when defects are discovered within a reasonable time, but within two years from the date of transfer of the goods to the consumer, unless longer periods are established by law or contract (Clause 1, Article 19 Law N 2300-1).

1.4. Deadline for submitting a claim if significant defects in the goods are discovered

Special rules apply if significant defects in the product are identified and the manufacturer (an authorized organization or an authorized individual entrepreneur, importer) is required to eliminate them free of charge. This claim can be made if defects in the product are discovered:

1) after two years from the date of transfer of the goods to the consumer, but during the service life of the goods;

2) within 10 years from the date of transfer to the consumer of a product whose service life is not established.

In these cases, the consumer must prove that significant deficiencies arose before the goods were transferred to him or for reasons that arose before that moment (clause 6 of article 19 of Law No. 2300-1).

A significant defect in a product is an irreparable defect or defect that cannot be eliminated without disproportionate costs or time, or is detected repeatedly, or appears again after its elimination, or other similar defects. At the same time, the presence of an opportunity to eliminate a deficiency does not in itself mean that it is not significant (

preamble
of Law N 2300-1).
1.5. Deadline for filing claims for defects in a technically complex product

A special deadline is established for filing claims for defects in technically complex goods, which include, for example, cars, computers, televisions, and refrigerators. You can request a refund of the amount paid for such a product or a replacement of the product (regardless of the significance of the defects) within 15 days from the date of delivery of the product to the consumer. Later, these requirements are subject to satisfaction in one of the following cases (clause 1 of article 18 of Law No. 2300-1; clause 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights” ):

- if a significant defect in the product is discovered;

— the deadlines established by law for eliminating product defects were violated;

— it is impossible to use the product for more than 30 days (in total) during any year of the warranty period due to repeated elimination of various defects of the product.

1.6. Deadlines for submitting claims for quality goods

The consumer has the right to exchange many non-food products of good quality for similar ones from the seller from whom he purchased the product, if the latter does not suit the shape, dimensions, style, color, size or configuration. An exception is certain non-food products that are not subject to return and exchange on the specified grounds, for example, personal hygiene items, perfumes and cosmetics. It is also impossible to exchange food products of proper quality (Article 502 of the Civil Code of the Russian Federation; clause 1 of Article 25 of Law N 2300-1; “List of non-food products of proper quality that are not subject to return or exchange”, approved by Decree of the Government of the Russian Federation of January 19, 1998 N 55).

As a general rule, the period for submitting a request for the exchange of non-food goods of proper quality is 14 days, not counting the day of purchase of the goods (Clause 1, Article 25 of Law No. 2300-1).

2. Deadlines for filing claims regarding deficiencies in work performed (service provided)

Claims for deficiencies in the work performed (service provided) can be presented to the contractor upon acceptance of the work (service) or during its execution (rendering).

If upon acceptance of the work (service) it is impossible to detect defects, the claim is made during the warranty period, and in its absence - within a reasonable period, within two years from the date of acceptance of the work performed (service provided) or five years in relation to defects in real estate (clause 3, Article 29 of Law No. 2300-1).

When the warranty period provided for in the contract is less than two years (five years for real estate) and defects in the work (service) are discovered after its expiration, but within two years (five years for real estate), the consumer has the right to make claims if he proves that such the deficiencies arose before he accepted the result of the work (service) or for reasons that arose before that moment (clause 5 of article 29 of Law No. 2300-1).

If significant deficiencies in the work (service) are identified, the consumer may present a demand to the contractor to eliminate them free of charge if he proves that the deficiencies arose before he accepted the result of the work (service) or for reasons that arose before that moment. This requirement can be made if such defects are discovered after two years (five years in relation to real estate) from the date of acceptance of the work (service), but within the service life established for it, or within 10 years from the date of acceptance of the work (service) by the consumer , if the service life is not established (clause 6 of article 29 of Law N 2300-1).

3. Deadlines for filing claims for compensation for damage to life, health and property of the consumer

Damage caused to the life, health or property of a consumer due to defects in a product, work or service is compensated by the seller or manufacturer of the product (at the choice of the victim), the performer of the work or service in full. Any victim can demand compensation for harm, regardless of whether he entered into an agreement with the seller (manufacturer, performer) or not (clauses 1.2 of Article 14 of Law No. 2300-1; Article 1095 of the Civil Code of the Russian Federation).

As a general rule, the consumer makes a claim for compensation for damage if it was caused during the established service life or shelf life of the product (work) (Clause 3 of Article 14 of Law No. 2300-1).

Damage is subject to compensation regardless of the time it was caused in the following cases: if, by virtue of the law, a service life or expiration date should be established for a product (result of work), but it is not established; if the consumer to whom the product was sold, for which the work was performed or to whom the service was provided, was not warned of the necessary actions upon expiration of the expiration date or service life and the possible consequences of failure to perform these actions; if the consumer was not provided with complete and reliable information about the product (work, service); if the product (result of work) after the expiration of its service life or expiration date poses a danger to life and health (clause 3 of article 14 of Law N 2300-1; clause 2 of article 1097 of the Civil Code of the Russian Federation):

A special rule has been established for cases where the manufacturer (performer) has not established a service life for a durable product (work). Requirements for such a product (work) can be made within 10 years from the date of transfer of the product (work) to the consumer, and if this day cannot be determined, from the date of manufacture of the product (completion of the work) (Clause 3 of Article 14 of Law No. 2300-1 ; clause 1 of article 1097 of the Civil Code of the Russian Federation).

The claim was subsequently partially satisfied

It won't matter anymore.
A fine for failure to voluntarily satisfy consumer requirements is collected if the seller has not repaid the entire amount before the “victim” goes to court.

After the latter has submitted a statement of claim to the court, fulfillment of the requirements of the claim is not considered voluntary. Moreover, if the company did not pay all the claims, but only a part, or not immediately after filing the claim, but received a losing decision from the court of first instance. Payment of part of the debt after the occurrence of a claim is not a basis for exempting the seller from paying a fine (Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated February 13, 2018 No. 81-KG17-26).

Does the consumer need to comply with the claim procedure for resolving a dispute?

Lawyer Antonov A.P.

Compliance with the claims procedure is necessary if there are claims against a telecom operator, carrier, tour operator, insurer for the payment of insurance compensation, or against a microfinance organization for a claim for monetary recovery. In other cases, compliance with the claim procedure is appropriate.

When compliance with the claim procedure is mandatory A clause on the need to comply with the pre-trial procedure for resolving a dispute is, as a rule, contained in the industry law regulating the provision of certain services. A mandatory claim procedure is provided, in particular, in the following cases: 1) non-fulfillment or improper fulfillment by the telecom operator of obligations arising from the contract for the provision of communication services (clause 4 of article 55 of the Law of July 7, 2003 N 126-FZ); 2) claims related to the transportation of cargo, passengers, luggage, depending on the type of transport, or related to towing of a towed object by inland water transport (clause 1, article 797 of the Civil Code of the Russian Federation; clause 3, article 124 of the Civil Code of the Russian Federation; clause 1, art. 161 KVVT RF; part 2, article 39 of the Law of November 8, 2007 N 259-FZ; article 120 of the Law of January 10, 2003 N 18-FZ); 3) filing claims for insurance compensation under the MTPL agreement (Clause 1, Article 16.1 of the Law of April 25, 2002 N 40-FZ); 4) claims regarding the quality of the tourism product in relation to tour operators (Part 2 of Article 10 of the Law of November 24, 1996 N 132-FZ); 5) statement of a property claim against a financial organization interacting in the prescribed manner with the financial commissioner (the commissioner for the rights of consumers of financial services). In this case, as part of the pre-trial settlement of the dispute, you must first submit an application to the financial organization, and after its consideration - to the financial ombudsman (Article 1, Part 2 of Article 15, Article 16, Part 1 of Article 25 of the Law of 04.06 .2018 N 123-FZ; clause 1, article 16.1 of Law N 40-FZ).

Reference. Financial services Financial services in respect of which the pre-trial dispute resolution procedure is applied by the financial ombudsman include services provided (Parts 1, 2 of Article 28, Part 1 of Article 30 of Law N 123-FZ): insurance organizations (except for insurance organizations providing exclusively compulsory health insurance); microfinance organizations; credit consumer cooperatives, pawnshops, credit organizations, non-state pension funds; any organizations that have organized interaction with the financial ombudsman on a voluntary basis and are included in the list of such organizations posted on the Bank of Russia website.

Failure to comply with the rules on the mandatory claim procedure is grounds for returning the statement of claim (clause 1, part 1, article 135 of the Code of Civil Procedure of the Russian Federation). In addition, filing a claim against a consumer rights violator is mandatory if you contact the body exercising federal state supervision in the field of consumer rights protection (Rospotrebnadzor) with a request to conduct an unscheduled inspection of an organization or individual entrepreneur. This requirement does not apply to appeals containing an indication of a threat of harm to the life or health of a citizen or the infliction of such harm (clause “c”, paragraph 2, part 2, article 10 of the Law of December 26, 2008 N 294-FZ; Information from Rospotrebnadzor “ On the procedure for conducting inspections based on citizens’ appeals to Rospotrebnadzor”).

Note! In 2021, the Government of the Russian Federation may establish the specifics of the implementation of state control (supervision) (clause 1, part 1, article 17 of Law dated 04/01/2020 N 98-FZ).

When compliance with the claim procedure is advisable For the consumer, the pre-trial procedure is also important in cases where the law establishes certain deadlines for satisfying the consumer’s requirements, which are calculated from the date of presentation of the claim to the organization or individual entrepreneur, for example: seven days to replace a low-quality product (if the defect is obvious) ( paragraph 1 of article 21 of the Law of 02/07/1992 N 2300-1); ten days to return the amount of money paid for the goods (Article 22 of Law No. 2300-1). Filing such a claim directly to the court is meaningless, since an organization or individual entrepreneur cannot know about the consumer’s claims before submitting claims to them, and if such claims are presented, they can voluntarily satisfy the consumer’s demands. In addition, if the consumer’s demands are not fulfilled voluntarily, then subsequently, when going to court, the consumer may demand payment of a fine in the amount of 50% of the amount awarded to him or a penalty for each day of delay in satisfying his claim (clause 6 of article 13 , Articles 23, 30, paragraph 3 of Article 31 of Law No. 2300-1).

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

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The claim was overcharged

It doesn't matter.
If the consumer is fundamentally right, then you just need to pay him a fair amount.

Of course, situations can vary in complexity. Extremely simple: when the consumer demands to return exactly the amount that he paid for the product. It’s more complicated: a person wants, in addition to the cost of the product, to be reimbursed for related expenses, for example, for delivery of the product to his home or for its installation. It’s even more complicated: the cost of the product plus associated expenses, plus moral damages.

The company has the right to disagree with the declared amount. However, if from a legal point of view the consumer is right, for example, the product was truly defective, then the company must express its readiness to satisfy his claims with the proviso that an agreement must be reached regarding the amount to be reimbursed.

It is not worth refusing to restore a citizen’s right, motivating the refusal by the fact that his proven losses amounted to, for example, 100 thousand rubles, and in his claim he demands to pay him 1 million rubles. It is necessary to reimburse the justified 100 thousand rubles (Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 28, 2019 No. 91-KG19-1).

The claim does not contain consumer account details

This argument is often found in practice, but does not help in the courts.
It is true that consumers do not always indicate their bank details in their claims to transfer funds for the returned goods. It would seem that the company is deprived of the opportunity to transfer money. After all, she doesn’t know where.

However, the courts believe that this is not a hopeless situation. The absence of bank details does not relieve the seller of the obligation to return funds. In addition, the organization has options on how to pay the dissatisfied customer in this case:

• deposit money into the notary's deposit account and inform the buyer about this;
• deposit them into a bank account on demand, and also notify the consumer about this;
• send money by postal order to the address specified in the citizen’s claim;
• give him money in another acceptable way, in particular, by inviting him to a store or office.

The organization has the right to use any of these methods. If she did not resort to them, then she is to blame for the fact that the claim remained unsatisfied (Appeal rulings of the Supreme Court of the Republic of Bashkortostan dated 02/01/2018 No. 33-1728/2018, Perm Regional Court dated 04/20/2015 No. 33-3864).

Regulatory regulation

All consumer rights are protected by Federal Law of 02/07/1992 No. 2300 - 1 (ZZPP):

If the seller sold a defective product and did not warn the buyer about this, the latter can return the low-quality product to the store during the warranty period.

The complaint does not contain a list of identified deficiencies

This argument will work if the company could not know them, and will not help if the shortcomings became known to it.
In the complaint, the consumer may not indicate what specific defects the product has. After all, objectively it is not always extremely clear what exactly is broken. If the seller cannot establish this, then an examination is carried out to clarify this circumstance.

Therefore, if there is no list of shortcomings in the buyer’s letter, but it appeared in the expert’s subsequent conclusion, then it is considered that the claim was justified, and after the seller organization receives a response from the expert, the consumer’s demands must be satisfied (Appeal ruling of the Perm Regional Court dated November 27, 2017 No. 33-12993/2017).

The claim did not refer to moral damages

Such an argument specifically against paying compensation for moral damage is untenable.
The consumer is not obliged to indicate in the claim a requirement for compensation for moral damage in order to later recover this compensation in court. The laws do not prescribe such dependence.

Therefore, it is useless to refer to the absence in the claim of a requirement for compensation for moral damages to the selling company in court.

If the basic demands of the consumer-plaintiff are recognized as valid and are satisfied by the court, then compensation for moral damage at the request of the plaintiff is awarded to him automatically.