Furniture - refund, penalty for delay in production and delivery

Late delivery of a kitchen set is an unpleasant situation for the buyer. It is impossible to imagine the life of a modern person without furniture.

Therefore, everyone had to buy it from a seller or manufacturer.

As a rule, the second party offers services for delivering furniture to its buyer, which everyone uses with pleasure.

What to do if the furniture was not delivered to its destination within the specified period of time?

What is the penalty for late delivery of furniture?

Methods for selling furniture

2 ways to sell furniture - by samples or remotely.

The current legislation does not establish any prohibitions on the method of selling goods, that is, it does not limit the seller (manufacturer) to use any method to sell the furniture he produces. We will highlight the main and probably the most popular ways of selling furniture:

sale of furniture by samples - involves direct familiarization of the consumer with the purchased product, which is located at the point of sale. The place of sale means showrooms, shops and other sites (Part 1 of Article 497 of the Civil Code of the Russian Federation, Decree of the Government of the Russian Federation of July 21, 1997 No. 918 “On approval of the rules for the sale of goods based on samples”)
remote method of selling furniture - involves selling without direct familiarization of the consumer with furniture or its samples when concluding a purchase and sale agreement, including through booklets, catalogs, online stores, etc. (clause 2 of article 497)

Legal and contractual penalties under the Civil Code of the Russian Federation

In order to ensure the obligations of the transaction by the parties, the legislator in Art.
12 and paragraph 1 of Art. 329 of the Civil Code of the Russian Federation provides for the possibility of collecting a penalty. For all types of transactions, a penalty can be assigned on the basis of an agreement, i.e., the text specifies the possibility of collecting a penalty and the procedure for calculating it. For some types of transactions, a penalty may be collected based on legal requirements.

The penalty under the supply contract is recovered:

for non-payment or untimely payment of goods received or advance obligation, if advance payment is provided;
delivery of goods specified in the contract in incomplete quantities;
Missing the established deadline for transferring the subject of the transaction to the buyer.

At the same time, the last two grounds for collecting a penalty under a supply contract of the Civil Code of the Russian Federation are additionally regulated by a special norm - Art. 521. The penalty can be collected only until the delivery of the missing goods under the contract. Once the delivery is completed, no penalty will be charged.

Legal penalties under a supply agreement are established only for certain types of supplies, for example, supplies for government needs, supplies of electricity. Accordingly, if the supply is not related to government procurement or its subject is not electricity, the possibility of collecting a penalty is specified separately in the contract.

What legal provisions apply to the purchase of furniture?

The Law of the Russian Federation “On the Protection of Consumer Rights” contains 2 main chapters regulating the legal relations that arise between the consumer and the seller (manufacturer, performer) when:

sale of goods (Article 18-26.2 of the Law of the Russian Federation “On Protection of Consumer Rights”)
performance of work and/or provision of services (Article 27-39.1 of the Law of the Russian Federation “On the Protection of Consumer Rights”)

Furniture by its nature is a product and by default it is assumed that the legal relationship between the consumer and the seller is regulated by the provisions of Art. 18-26.2 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the Civil Code of the Russian Federation and the agreement concluded between the parties.

However, what provisions of the law should be applied if the purchase of furniture is intended to be made to order - when selling goods or performing work/providing services?

Provisions regarding the performance of work or provision of services may apply to a contract for the sale of furniture.

If the purchase of furniture is intended to be made according to an individual order, then the provisions on the performance of work and/or provision of services should be applied to the legal relations of the parties to the contract (Article 27-39.1 of the Law of the Russian Federation “On Protection of Consumer Rights”), since an individual order presupposes product parameters that are different from standard in size, color, etc.

That is, the contract for the purchase and sale of furniture must be in the nature of a mixed contract - it must contain conditions both for the purchase and sale and for the manufacture of furniture according to individual parameters.

In any case, it is possible to determine the existence of conditions for the purchase and sale and provision of services for the manufacture of custom-made furniture only after reading the terms of a particular contract. Only after this can the agreement be classified as mixed.

Results

Thus, speaking about supply, the most relevant is a contractual penalty, since the law provides only a penalty for violation of government supply contracts, as well as contracts for the supply of electricity. The amount of the penalty depends not only on the terms of the contract, but also on the amount of the transaction and the period of delay.

To collect a penalty through the court, the pre-trial procedure for resolving the dispute must be followed.
The issue is resolved in arbitration court if the claim is not satisfied during the claim settlement of the dispute. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Some “tricks” of the seller’s or manufacturer’s contract

Recently, a trend has been gaining momentum when sellers (manufacturers) of furniture stubbornly avoid conditions in contractual relations with consumers that indicate the manufacture of furniture.

A penalty of 3% of the contract price for each day of delay is possible.

As we said earlier, the Law of the Russian Federation “On the Protection of Consumer Rights” contains 2 main chapters regulating legal relations in the sale of goods and the performance of work and/or provision of services.

The main difference in these chapters comes down to the financial responsibility that the seller (manufacturer) bears to the consumer in the following amounts:

when selling goods, in accordance with Art. 23 of the Law of the Russian Federation “On the Protection of Consumer Rights”, that is, 1% of the price of the goods for each day of delay or in accordance with Art. 23.1 of the Law of the Russian Federation “On the Protection of Consumer Rights”, that is, 0.5% based on the preliminary amount of payment for the goods (for each day of delay)
when performing work and/or providing services on the basis of Art. 31 and paragraph 5 of Art. 28 of the Law of the Russian Federation “On the Protection of Consumer Rights”, that is, 3% for each day of delay, based on the price of the work/service stage or the full price of the order, if the cost of the work/service stage has not been determined

Thus, sellers (manufacturers) of furniture are guided by economic benefits (reduction of penalties) in the event of a violation of contractual terms, therefore the subject of the contract can be exclusively the provisions on the purchase and sale of goods, without mentioning the provision of furniture manufacturing services.

Therefore, when signing an agreement, it is required to at least “quickly” familiarize yourself with its contents and understand the essence of its content.

Otherwise, it will be necessary to prove in court that the purchase and sale agreement is a mixed agreement containing the terms of both the agreement for the sale of goods and the agreement for the provision of paid services, as evidenced by the dispute of one of our clients with JSC Forema-Kukhni » on the collection of a penalty for violation of the terms of the contract for the manufacture of kitchen units.

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Legal penalty

According to experts, as well as users, the penalty is a fairly flexible type of sanctions. In addition to the fact that there are several types of penalties, both parties to the transaction have the opportunity, when making it, to choose any one of its types at their discretion.

It should also be noted that the objects of the transaction can independently determine the amount of the penalty. As an example, we can consider in more detail the question of how penalties for late delivery of furniture are calculated according to the law.

If the seller violates the delivery time for goods previously specified in the purchase/sale agreement, he is obliged to pay a penalty to the buyer, moreover, for each day of delay. How to correctly calculate the amount of the penalty according to the law?

First of all, in order to be able to carry out such calculations, you must have the following data:

What is the amount of the advance payment made? This data can be obtained from a cash receipt, sales receipt, receipt order or other type of document that certifies the fact of prepayment for furniture.
The period by which the purchased furniture must be delivered to the place specified by the buyer. This date is indicated during the process of drawing up and signing the purchase/sale agreement. In some cases, the contract may indicate not a specific date, but a time period for delivery of the purchased product. It is also necessary to take into account that the contract specifically indicates calendar or bank days of delivery.

Now let's look at the steps that need to be taken to calculate the legal penalty of different types:

0.5% of the prepayment amount. First, you need to accurately determine the period of delay. From the contract, find out the amount of the advance payment made by the buyer when purchasing furniture. Based on this amount, you can now calculate the amount of the penalty for 1 day of delay by multiplying the prepayment amount by 0.5%. Now it is possible to determine the exact amount of the penalty by multiplying the number of days of delay by the amount of the penalty for 1 day of delay. It is possible that, after the calculations have been carried out, it will be established that the amount of the penalty is greater than the amount of the prepayment. In this case, the buyer will only be refunded the amount paid in advance for the purchase of furniture.
1% of the total cost of furniture. More details about this penalty can be found in Art. 21 – 23 Laws. Despite the fact that, according to the law, a penalty of 1% of the cost of purchased furniture can be used only in cases where the buyer has evidence of poor quality of the goods, in judicial practice this type of penalty is often used quite often in cases of violation of delivery deadlines. With only one caveat: delivery not of the purchased goods, but of those furniture elements that need to be replaced with others if the purchased furniture is identified and documented to be defective. In this case, there is a strictly established period for delivery of the purchase to the buyer, the duration of which is 3 days. When calculating the amount of the penalty, it is necessary to determine the exact cost of the goods. This data can be found in the contract, sales or cash receipt, software. In order to determine the amount of the penalty for 1 day of delay, you need to multiply the cost of the goods by 1%. Now you need to know exactly the number of days of delay. At the final stage, it is possible to calculate the total amount of the penalty by multiplying the number of days of delay by the amount of 1 day of delay. Often in this case, disputes arise over who exactly should pay this type of legal penalty. This could be a seller, a furniture manufacturing company or an importer. It is impossible to give an exact answer as to who exactly it should be. In each individual case the answer may be different.

Guided by Art. 395 of the Law, the buyer of furniture has the opportunity to demand payment from the seller in addition to the legal penalty and additional interest. For example, if the buyer refused to supply furniture after its delivery deadlines were violated. In addition, the basis for paying additional interest is the case when the seller did not deliver the purchased furniture on time and after a second change in the delivery date.

Requirements that may be presented to the seller

If the terms of the contract are violated, you should not demand everything at once.

If we consider furniture as a product, the consumer, in accordance with paragraph 1 of Art. 18 of the Law of the Russian Federation “On the Protection of Consumer Rights” may require the seller (manufacturer):

replacement with an identical product;
replacement with the same product, but of a different brand, taking into account recalculation;
reduce the price of furniture (proportionately);
eliminate identified furniture defects or reimburse the costs of their correction by the consumer or a third party;
terminate the contract with subsequent return of the amount paid;
penalty, in the manner and within the time limits established by Art. 23 of the Law of the Russian Federation “On the Protection of Consumer Rights”, which is 1% of the price of the goods for each day of delay or in accordance with Art. 23.1 of the Law of the Russian Federation “On the Protection of Consumer Rights”, which is 0.5% based on the amount of payment (preliminary) for the goods (for each day of delay).

If we consider furniture as a product that requires custom manufacturing, the consumer, in accordance with paragraph 1 of Art. 28 of the Law of the Russian Federation “On the Protection of Consumer Rights” may require the seller (manufacturer):

set a new deadline if the furniture was not manufactured within the period established by the contract;
entrust the furniture manufacturing service to third parties, observing the principle of a reasonable price, or perform it yourself and demand compensation from the seller for expenses incurred;
demand a reduction in the price of the product;
refuse to perform the contract;
penalty provided for in Art. 31 and paragraph 5 of Art. 28 of the Law of the Russian Federation “On the Protection of Consumer Rights”, which is 3% for each day of delay of the price of the contract or the corresponding stage.

But it must be taken into account that the choice of the requirements indicated above must be presented based on the actual circumstances of the case and the terms of the contract. It is not possible to include all requirements in a claim at once.

Violation of delivery deadlines for upholstered furniture

gr. case No. 2-6382/2013 CASE DECISION In the name of the Russian Federation August 13, 2013 Syktyvkar City Court of the Komi Republic composed of judge Yu.A. Dultseva. with secretary Mikheeva L.P., having considered in open court a civil case based on E.’s claim against LLC “P.” on the protection of consumer rights, collection of penalties, compensation for moral damage, legal expenses; u s t a n o v i l

: E. filed a lawsuit against LLC “P.” with demands for the collection of a penalty in the amount of ... rubles for violating the deadlines for the transfer of prepaid goods under contract No. ... dated ** ** **., the collection of a penalty in the amount of ... rubles for violating the deadlines for eliminating deficiencies, compensation for moral damages in the amount of ... rubles, legal expenses in the amount of... rubles... kopecks. In support of the stated requirements, she indicated that 09/04/2011. between her and LLC "P." An agreement was concluded for the manufacture and supply of a set of upholstered furniture worth ... rubles. According to the terms of the contract, the order completion period was from 09/04/2011. to 01.10.2011, however, in violation of the terms of the contract, a set of upholstered furniture was delivered on 22.10.2011, i.e. in violation of the established period by 21 days. In addition, during the operation of the set of upholstered furniture, shortcomings were discovered, and therefore on 10.30.2011. The plaintiff approached the defendants orally with demands to eliminate the defects of the goods. 11/11/2011 to the director of LLC "P." a claim was sent demanding the production of another item, namely the replacement of the ottoman with one that complies with the standard and price requirements of the contract. 12/15/2011 a response to the complaint was received, agreeing to eliminate the identified deficiencies, but the set was replaced only on March 26, 2012, which violated the deadlines for eliminating the defects of the product. The plaintiff did not take part in the court hearing, filing an application to consider the case in her absence. LLC "P.", notified at the location address, avoided receiving summonses at the post office and appearing at the court hearing. The case was considered in the presence of persons in absentia proceedings. Having examined the case materials and the evidence in the case in their entirety, the court comes to the following conclusion. The norm of Article 9 of the Federal Law “On the entry into force of Part Two of the Civil Code of the Russian Federation” establishes that in cases where one of the parties to the obligation is a citizen using, purchasing, ordering or intending to purchase or order goods (work, services) for personal household needs, such a citizen enjoys the rights of a party to an obligation in accordance with the Civil Code of the Russian Federation, as well as the rights granted to the consumer by the Law of the Russian Federation “On the Protection of Consumer Rights” and legal acts issued in accordance with it. In accordance with Article 13 of the Law of the Russian Federation dated 02/07/1992. No. 2300-1 “On the Protection of Consumer Rights” for violation of consumer rights, the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) bears responsibility under the law or contract. According to Part 1 of Article 27 of the Law of the Russian Federation “On the Protection of Consumer Rights,” the contractor is obliged to carry out the work (provision of services) within the time limit established by the rules for the performance of certain types of work (provision of certain types of services) or the contract for the performance of work (provision of services). As follows from the case materials, 09/04/2011. between LLC "P." (Contractor) and E. (Customer) concluded agreement No.... for the supply and manufacture of furniture based on samples, under the terms of which the Contractor undertakes to accept an order for the manufacture of furniture (for cabinet furniture - disassembled) in accordance with agreement No.... dated ** ** **. The product warranty is 18 months (clause 1.1.). According to clause 1.2. Order fulfillment period is within 22 working days from 09/04/2011. to 01.10.2011 The cost of furniture under this agreement is ... rubles. (clause 2.1.). The first installment is ... rubles (clause 2.2.). The amount to be paid additionally upon final payment is… rubles (clause 2.3.). The customer is obliged to pay the cost of the goods before the order is shipped (clause 2.4 of the contract). As follows from the documents presented, E. 09/04/2011. an advance payment was made in the amount of... rubles, which is confirmed by receipt-agreement No..... October 22, 2011 funds were deposited in the amount of... rubles, which is confirmed by receipt-agreement No..... The monetary obligations were fulfilled by the Customer properly, which was not disputed by the parties during the consideration of the case and is confirmed by relevant documents. In accordance with Part 1 of Article 23.1. According to the Law of the Russian Federation “On the Protection of Consumer Rights”, a purchase and sale agreement, which provides for the consumer’s obligation to pre-pay for the goods, must contain a condition on the period of transfer of the goods to the consumer. In case of violation of the deadline established by the sales contract for the transfer of prepaid goods to the consumer, the seller pays him a penalty (penalty) for each day of delay in the amount of half a percent of the amount of prepayment for the goods (Part 3 of Article 23.1 of the Law). The penalty (penalty) is collected from the day when, according to the purchase and sale agreement, the transfer of the goods to the consumer should have been carried out, until the day the goods are transferred to the consumer, or until the day the consumer’s demand for the return of the amount previously paid by him is satisfied. Taking into account that the acceptance of services for the production of household items and things was carried out between the parties on October 22, 2011, which is confirmed by receipt-agreement No...., the court comes to the conclusion that the defendant violated the terms of delivery of the goods, and therefore the requirements of E. on the collection of a penalty for violating the deadlines for the transfer of pre-paid goods in the amount of ... rubles. Considering E.’s demands for the collection of a penalty for violating the deadlines for eliminating defects, the court considers them also subject to satisfaction. In accordance with Part 1 of Article 18 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the consumer, if defects are detected in the product if they were not specified by the seller, at his own discretion, has the right to, among other things, demand immediate, free elimination of defects in the product or reimbursement of expenses for their correction by the consumer or a third party. It was established that due to the identification of product defects, on November 11, 2011. E. to LLC "P." a claim was sent to replace the ottoman with one that complies with the standard and price stated in contract No.... dated ** ** ** and to adjust the cushion lifting mechanism on the main part of the set. The claim was received by the defendant on November 12, 2011, which is confirmed by a message from the FSUE branch ... dated ** ** **. 12/15/2011 in response to the claim of E. LLC "P." It was reported that the elimination of deficiencies in the difference in height of the ottoman block and wear on the backs of the sofa can be eliminated on site in Syktyvkar, the elimination of the identified violation of damage to the cover, holes on the transformation mechanism can be made no earlier than 01/23/2012. due to delay in fabric delivery. Due to the fact that the identified defects in the goods of P. LLC. were not eliminated within the established time frame, E. 02/05/2012. a claim was sent to the defendant for the free production of a set of furniture similar to that purchased by her under contract No.... dated ** ** **., due to the failure to satisfy the claim from ** ** **. and failure to eliminate identified defects. 03/04/2012 between LLC "P." and E. signed an agreement for the manufacture and supply of furniture according to samples No...., under the terms of which the Contractor undertakes to manufacture furniture in accordance with the parameters specified in the Order Form, which is an Appendix to this agreement, deliver and transfer into the ownership of the Customer, and the Customer in accordance with the terms of the agreement, pay and accept the above-mentioned furniture (clause 1.1.). According to clause 2.1. of the specified agreement, the price of furniture is determined at the time of conclusion of the agreement. Payment for goods is made by depositing funds into the Contractor's cash desk by the Customer. The first payment specified in clause 2.3. of this agreement is entered at the time of conclusion of the agreement. Clause 2.3. It is determined that the first installment is ... rubles. The amount to be paid additionally upon final settlement is ... rubles (clause 2.4.). The Contractor manufactures and delivers the ordered furniture to its warehouse in Syktyvkar no later than 22 working days from the date of conclusion of the contract, i.e. from 03/04/2012 to 04/14/2012 (clause 3.1.1 of the agreement). Payment in the amount of ... ruble was made by E. on the basis of receipt-agreement No. ... dated ** ** **. Thus, agreement No.... dated ** ** **. in fact, E.’s claim from ** ** ** was satisfied. on the free production of a set of furniture. In accordance with Part 1 of Article 20 of the Law of the Russian Federation “On the Protection of Consumer Rights”, if the period for eliminating defects in the product is not determined in writing by agreement of the parties, these defects must be eliminated by the manufacturer (seller, authorized organization or authorized individual entrepreneur, importer) immediately, that is, in the minimum period objectively necessary to eliminate them, taking into account the method usually used. The period for eliminating defects in the goods, determined in writing by agreement of the parties, cannot exceed forty-five days. If, during the elimination of defects in the product, it becomes obvious that they will not be eliminated within the period specified by agreement of the parties, the parties may enter into an agreement on a new period for eliminating the defects of the product. At the same time, the absence of spare parts (parts, materials), equipment necessary to eliminate defects in the goods, or similar reasons, do not constitute grounds for concluding an agreement on such a new period and do not exempt from liability for violating the period initially determined by agreement of the parties. According to Article 12 of the Civil Procedure Code of the Russian Federation, justice in civil cases is carried out on the basis of adversarial law and equality of the parties. In accordance with Part 1, Article 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections. In accordance with Art. 57 of the Code of Civil Procedure of the Russian Federation, evidence is presented by the parties and other persons participating in the case. As explained in paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 1994. No. 7 “On the practice of courts considering cases on the protection of consumer rights”, according to the general rule, the burden of proving circumstances exonerating from liability for non-fulfillment or improper fulfillment of an obligation lies with the seller (manufacturer, performer, authorized organization or authorized individual entrepreneur, importer). The norm of Article 23 of the Law of the Russian Federation “On the Protection of Consumer Rights” establishes that for violation of the deadlines provided for in Articles 20, 21 and 22 of this Law, as well as for failure to comply (delay in fulfillment) of the consumer’s request to provide him with a similar product for the period of repair (replacement) of a similar product, the seller (manufacturer, authorized organization or authorized individual entrepreneur, importer), who committed such violations, pays the consumer a penalty (penalty) in the amount of one percent of the price of the goods for each day of delay. The price of the product is determined based on its price that existed in the place in which the consumer’s demand should have been satisfied by the seller (manufacturer, authorized organization or authorized individual entrepreneur, importer), on the day of voluntary satisfaction of such demand or on the day of the court decision, if the demand was not voluntarily satisfied. In accordance with Article 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of violation of the obligation, the court has the right to reduce the penalty. Taking into account the provisions of Articles 21, 23 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the stated circumstances of the case, the lack of evidence of voluntary elimination of identified defects in the goods within the time limits established by law, the court comes to the conclusion that LLC “P.a” is subject to recovery in favor of the plaintiff penalty for the period from December 28, 2011 (in accordance with Article 20 of the Law “On Protection of Consumer Rights”) until March 25, 2012. (execution of the claim dated 02/05/2013), which amounts to ... rubles i.e. in full, since the defendant’s side did not submit any requests to reduce it in accordance with Article 333 of the Civil Code of the Russian Federation. According to Art. 15 of the Law of the Russian Federation “On the Protection of Consumer Rights” moral damage caused to the consumer as a result of violation by the manufacturer (performer, seller) or an organization performing the functions of the manufacturer (seller) on the basis of an agreement with him, consumer rights provided for by the laws and legal acts of the Russian Federation governing relations in area of consumer rights protection, is subject to compensation by the causer of harm if he is at fault. The amount of compensation for moral damage is determined by the court and does not depend on the amount of compensation for property damage. Compensation for moral damage is carried out regardless of compensation for property damage and losses incurred by the consumer. When determining the amount of such compensation, the court is guided by the provisions of Art. 1101 of the Civil Code of the Russian Federation, takes into account the nature of the moral damage caused to the plaintiffs, taking into account the factual circumstances in which it was caused, the individual characteristics of the party, the nature of the defendant’s violation of the plaintiff’s rights, and considers it possible to recover from the defendant in favor of E. compensation for moral damage in the amount of ... rubles. According to Part 6 of Article 13 of the Law of the Russian Federation dated 02/07/1992 No. 2300-1 (as amended on 06/25/2012) “On the Protection of Consumer Rights”, when the court satisfies the consumer’s requirements established by law, the court recovers from the manufacturer (performer, seller, authorized organization or an authorized individual entrepreneur, importer) for failure to voluntarily meet consumer requirements, a fine in the amount of fifty percent of the amount awarded by the court in favor of the consumer. Paragraph 46 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights” establishes that if the court satisfies the consumer’s demands in connection with the violation of his rights established by the Law on the Protection of Consumer Rights, which are not were satisfied voluntarily by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer), the court collects a fine from the defendant in favor of the consumer, regardless of whether such a requirement was submitted to the court. Taking into account that the total amount of recovery for the stated claims is ... rubles, the court comes to the conclusion that LLC “P.” a fine in the amount of fifty percent of the awarded amount is subject to recovery in favor of the plaintiff, i.e. ... rubles. According to Part 1 of Article 98 of the Code of Civil Procedure of the Russian Federation, the party in whose favor the court decision was made, the court awards the other party to reimburse all legal expenses incurred in the case, except for the cases provided for in part two of Article 96 of this Code. From the evidence presented by E. it follows that on May 21, 2013. she and the FBUZ... concluded agreement No.... the subject of which was the provision of paid consulting services on the issues of drawing up a statement of claim to the court (clause 1). The cost of services under this agreement is determined by the Contractor’s price list at the time of drawing up the agreement and amounts to ... rubles ... kopecks (clause 4 of the agreement). Taking into account the above, the evidence confirming payment under contract No. ..., the court considers it reasonable and fair, taking into account the norms of Article 98 of the Code of Civil Procedure of the Russian Federation, to recover from LLC “P.” in favor of E. legal expenses in the amount of ... rubles ... kopecks. Guided by Art. Art. 194-198 Code of Civil Procedure of the Russian Federation, decided: E.’s claims are partially satisfied. Collect from LLC "P." in favor of E. a penalty for violating the deadlines for the transfer of goods in the amount of ... rubles, a penalty for violating the deadlines for eliminating defects in the amount of ... rubles, compensation for moral damages in the amount of ... rubles, a fine for failure to satisfy the plaintiff’s demands voluntarily in the amount of ... rubles, legal costs in in the amount of ... rubles ... kopecks, and to recover the total from LLC "P." in favor of E.. the amount of... ruble... kopecks. The remaining part of the stated claims shall be rejected. The defendant has the right to file an application to the Syktyvkar City Court to cancel the court decision within seven days from the date of receipt of a copy of the decision. A court decision in absentia may be appealed by the parties to the Supreme Court of the Komi Republic through the Syktyvkar City Court of the Komi Republic within a month after the expiration of the deadline for the defendant to file an application to cancel this court decision, and if such an application is filed, within a month from the date of the ruling court to refuse this application.

Judge - Yu.A. Dultseva

Resolving controversial issues in court

If the furniture showroom refused to satisfy the requirements set out in the complaint, or ignored it, leaving it unanswered, the citizen should apply to the courts to protect his legal rights and interests.

Important! To do this, you will need to file a statement of claim. This process must be approached with maximum attention, since the slightest inaccuracies made when drawing up the claim will lead to the claim being rejected by the court even without consideration.

The rules for drawing up a statement of claim are recorded in Article 131 of the Civil Procedure Code of the Russian Federation. Based on the norms enshrined in this article, a statement of claim can be issued exclusively in the form of a document on paper.

statement of claim for termination of the contract due to violation of the terms of production and delivery of the kitchen free of charge in word format

The statement of claim must contain the following information:

full name of the court to which the claim is filed,
information about the plaintiff. It is necessary to indicate the surname, first name and patronymic, details of the identity document, registration address and actual residence. Be sure to provide your contact phone number. If during the proceedings the interests of the plaintiff are represented by a legal representative, then it will be necessary to indicate the above information not only about the plaintiff, but also about the legal representative,
the full legal name of the furniture showroom, which is the defendant in this case, as well as all information known about it,
a detailed description of the facts of how the defendant violated your legal rights and interests.
cost of claim and cost calculations,
evidence confirming the legitimacy of the claims put forward by the plaintiff,
a detailed list of materials attached to the statement of claim.

The statement of claim must be accompanied by the plaintiff's handwritten signature indicating the date of signature. If the interests of the plaintiff are represented by a legal representative whose authority includes signing and filing statements of claim, he can sign the claim.

In this case, the statement of claim must be accompanied by a copy of the power of attorney, drawn up in accordance with the requirements of the current legislation of the Russian Federation, confirming the powers of the legal representative.

ATTENTION! Look at the completed sample statement of claim for termination of the contract due to violation of the deadlines for the production and delivery of the kitchen:

Statement of claim for compensation for moral damage.

Amount of penalty for failure to fulfill the terms of the contract

The amount of a legal penalty is determined in legislative acts. If the amount of the penalty for failure to fulfill obligations under the contract is not established by regulation, the parties to the transaction have the right to assign it independently.

IMPORTANT! In accordance with Art. 331 of the Civil Code of the Russian Federation, an agreement on a penalty must be drawn up in writing.

Based on the explanations given in paragraph 63 of Resolution No. 7, a written document on the penalty must comply with the requirements listed in paragraphs. 2, 3 tbsp. 434 Civil Code of the Russian Federation. If an agreement on a basic obligation is declared invalid, this implies the invalidity of an agreement on a penalty or fine (clause 64 of Resolution No. 7).

However, if an agreement on a penalty is concluded, in which it is determined that it is paid in the event of failure to fulfill obligations to return the property, due to the invalidity of the transaction, then the invalidity or non-conclusion of the main contractual document does not entail the invalidity of the conditions on the penalty (paragraph 2, paragraph 64).

In practice, the type, amount and procedure for claiming a penalty are agreed upon directly in the agreement. The amount of the penalty is established as a percentage of the amount of the obligation. There are no legal restrictions on the percentage of penalties for failure to fulfill obligations under the contract.

Explanations from experts on various aspects of the application of penalties can be found in ConsultantPlus. For example, the answer to the question whether the amount of the penalty for violation by the parties of their obligations under the contract may exceed the amount of the principal debt. If you don't already have legal access, a full access trial is available for free.

Penalty for failure to fulfill obligations under the contract: general issues

The main regulatory document covering the provisions on penalties is the Civil Code of the Russian Federation.
Chapter 23 § 2 of the Civil Code of the Russian Federation provides a definition of the term in question, as well as the conditions for the application of this type of liability. A penalty (penalty, fine) is recognized (clause 1 of Article 330 of the Civil Code of the Russian Federation) as a sum of money determined with the consent of counterparties to a transaction or at the legislative level, payable by the debtor in the event of non-compliance with conditions, poor performance or delay in fulfilling obligations.

Accordingly, there are two types of penalties:

negotiated;
established by law.

In addition, based on the interpretations given in the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by courts of certain provisions of the Civil Code of the Russian Federation ...” dated March 24, 2016 No. 7, penalties are possible in the form (clause 60):

fixed rate - fine;
regular accruals - penalties.

Depending on the method of offsetting the damage incurred, the penalty is divided:

for credit, if the damage is compensated in the part not covered by the penalty (clause 1 of Article 394 of the Civil Code of the Russian Federation);
exceptional if only a penalty is claimed, but not compensation for damage;
a penalty if the amount of damage is compensated in full;
alternative, when recovery is made of either the damage incurred or the penalty.

Drawing up a pre-trial claim against the manufacturer

claims for violation of deadlines for production and delivery of kitchens free in word format

Please note! A claim sent to a furniture showroom must contain the following information:

full legal name of the furniture showroom. Here you must indicate who specifically from the management of the furniture salon you are contacting. Indicate the position, surname and initials,
The details of the person filing the claim are indicated. You must indicate your last name, first name and patronymic, registration address and actual residence. Be sure to include a contact phone number for quick communication,
the above information should be written in the upper right corner of the sheet. A little lower, already in the center of the sheet, write the name of the document being drawn up: pre-trial claim,
then the main part begins. It is in this part that you should state in as much detail as possible, but, if possible, briefly the essence of the problem that has arisen and describe all the essential circumstances. In this case, one should refer to the specific norms of the current legislation of the Russian Federation, which were violated by the furniture showroom,
State as clearly as possible the requirements that you want the furniture salon to satisfy. You can do this like this: “I ask you to terminate the agreement without date dated 04/05/2018. for the supply of a kitchen set and reimburse me for the money I paid as an advance payment,”
specifically note that if the requirements set out in the complaint are not satisfied, you will be forced to apply to the courts to protect your legal rights and interests. Emphasize that in this case, the furniture showroom may incur additional costs for lawyers, fines, government fees, and so on. Indicate that if the case goes to trial, you will also ask for compensation for moral damages,
list in detail all materials and documents attached to the claim,
seal the claim with your own signature, transcribe it and indicate the date of signing.

Important! The following materials must be attached to the claim:

a copy of the contract concluded with a furniture showroom for the manufacture and supply of kitchen units, drawn up in accordance with the requirements of the current legislation of the Russian Federation,
copies of financial documents drawn up in accordance with the requirements of the current legislation of the Russian Federation confirming the fact of payment under the above agreement.

The claim must be made in two copies. One copy of the claim is given to the representative of the furniture showroom.

Be sure to request that the representative of the furniture showroom who received the claim sign the second copy, decipher the signature and indicate the date the claim was received.

What to do if the seller refuses to return money for the product?

A copy with a mark of receipt of the claim remains with the citizen and will serve as evidence of the attempted pre-trial settlement.

If representatives of the furniture salon refuse to put a receipt mark on the second copy of the claim or do not accept the claim at all, it should be sent to the furniture salon by post. This must be done by registered mail with a list of attachments and acknowledgment of delivery.

The date on the notice will be considered the date the furniture store received the claim. From this date, the period that the current legislation of the Russian Federation allows for consideration of the claim and submission of a response will be calculated.

ATTENTION! Look at the completed sample claim for violation of deadlines for the manufacture and delivery of furniture: