Various situations may arise in life, including when you have to refuse a paid service for some personal reasons or when the service is not provided by an unscrupulous contractor, so in this situation the question arises whether such a contractor should be paid and how to return the deposit or the fully paid amount . It is not always possible to resolve the conflict peacefully and most often the customer has to go to court.
The process of returning money for a service not provided is regulated by several articles of Law No. 2300-1: , , and they should be carefully studied before you start demanding money back.
Failure to provide services under the consumer protection law
Failure to provide services is expressed by:
- failure to fulfill contractual obligations by the contractor;
- fulfillment of obligations not on time;
- provision of poor quality service.
Do I need to pay for a service that was not provided?
It depends on whether the contractor has started working and on the reason why the service was not provided.
You will have to pay for the service in part if you refuse a service that the contractor has already begun to provide.
If you managed to refuse before the contractor started working, then you do not need to pay.
If the consumer has made an advance payment, but force majeure prevented the execution of the service, then it will not be possible to return the money. But force majeure is a very difficult thing to formalize and prove. The contractor must confirm the insurmountability of the circumstances that prevented the execution of the order with certificates, and must notify the customer in a timely manner.
What does force majeure mean in a contract - the concept Read more
In cases where the service was not performed due to the fault of the contractor, the issue of payment also arises, but not in the first place: first you need to figure out whether the service will still be provided or the contract will be terminated. In addition, you need to check in the service contract whether the contractor pays a penalty for violating the contract.
Let us consider the consequences of each option for non-fulfillment of a service agreement individually in order to understand what compensation the consumer is entitled to.
Court decisions
How to get money back for poor performance of work and missed deadlines
The case of balcony cladding: how to find justice for an unscrupulous contractor
The car dealership does not give away the car
The store refused to refund money for non-working goods
Problems with the travel agency
Dispute with LST Development LLC over unfinished construction in Yanino
Violation of terms of provision of services
Relations between consumers and entrepreneurs and organizations performing services for them are regulated by Ch. III Law of the Russian Federation “On the Protection of Consumer Rights” No. 2300-I. The key concept of “terms of provision of services” is defined in Art. 27 of Law No. 2300-I. This is the start and end date of a job or the period of a job.
In case of violation of the terms of Art. 28 of Law No. 2300-I provides for several options for resolving the dispute:
- the performer is given a second chance (new term);
- the performer makes a discount on his services;
- the contractor pays for work performed by other persons or the customer himself;
- the customer terminates the contract.
To demand one of these actions from the contractor, the customer sends him a claim. A claim containing 1 of the listed options must be submitted by the customer in writing.
Penalty for violation of deadlines
Determining the timing is important for the correct calculation of the penalty provided for in paragraph 5 of Art. 28 of Law No. 2300-I. In accordance with paragraph 5 of Art. 28 of Law No. 2300-I, the penalty for violation of deadlines is calculated as follows:
- the amount of the penalty for 1 day is calculated, for which the cost of the service is multiplied by 3%;
- The full amount of the penalty is calculated by multiplying the penalty for 1 day by the number of days of delay.
If the contractor delays the start of work, penalties are accrued until the actual fulfillment of the obligation begins.
If the contractor delays the completion of the work, penalties are accrued until its actual completion.
The contract may also determine other penalties for violating deadlines.
Poor quality of service
If the services are provided with poor quality, the consumer, in accordance with Art. 29 of Law No. 2300-I may require the performer to:
- correct all defects at your own expense;
- do it all over again;
- reduce the cost of the service;
- pay the costs incurred by the customer in eliminating identified deficiencies.
How to write a complaint to a transport company More details
In the first case, the consumer sets a deadline in the complaint for eliminating the deficiencies. In the 2nd, the performer is obliged to deliver the work within the same deadline that was originally assigned, or urgently.
In all other cases, the customer’s requirements are fulfilled within 10 days (Article 31 of Law No. 2300-I).
As for shortcomings discovered some time after the work was accepted, you can read about the deadlines for filing claims in this situation in the article “Maximum statute of limitations for protecting consumer rights”.
If the deadline for fulfilling the consumer’s requirement is violated, the contractor is also charged a penalty (penalty) from the day following the day of fulfillment of obligations under the contract until the consumer’s requirements are fulfilled (paragraph 6, part 1, article 29 of Law No. 2300-I). If, as a result of a poorly provided service, the consumer suffers damage, the contractor also compensates for it (paragraph 8, part 1, article 29 of Law No. 2300-I).
If the contractor does not fulfill the requirements specified in the complaint, or the shortcomings turn out to be significant, the consumer has the right to terminate the contract with a refund of the money paid. To find out whether the seller is obliged to respond in writing to a consumer’s complaint and within what time frame, read our article “How to respond to a consumer’s complaint.”
A detailed action plan for the customer in case of provision of services of inadequate quality is offered by ConsultantPlus in a ready-made solution. If you do not yet have access to ConsultantPlus, you can sign up for it for free.
Failure to provide services: consequences
The consumer may cancel the service contract at any time (Article 32 of Law No. 2300-I). The contractor does not have such an opportunity, since he is not only obliged to enter into public contracts concluded with consumers, but also does not have the right to terminate (clause 3 of Article 424 of the Civil Code of the Russian Federation, determination of the Constitutional Court of the Russian Federation dated October 14, 2004 No. 391-O).
Depending on whose initiative (performer or customer) the services were not provided, the amount that the consumer-customer should receive is calculated:
- The customer changed his mind about using the company’s services, but it has not yet started work. In this case, the customer will be refunded all money paid.
- The customer decided to terminate the contract after the start of the service. The money is returned to him minus the expenses incurred by the contractor.
- The Contractor does not provide services for unjustified (incomprehensible) reasons. In addition to returning the money paid, the customer also has the right to collect a penalty.
- The Contractor does not provide services due to insurmountable circumstances. In this case, the money is not returned to the customer (Clause 4, Article 13 of Law No. 2300-I).
If the contractor does not fulfill the requirements specified in the claim (in the case under consideration, he does not return the money), the court may subsequently impose a fine on him for failure to comply with the legal requirements of the consumer (Clause 6 of Article 13 of Law No. 2300-I).
Required documents
Consumer knowledge of the law is sometimes not enough to defend their interests in court and other authorities. Any relationship between the parties must be formalized by an officially drawn up document - an agreement. This document will serve as proof that the consumer applied for a specific service. To return the advance payment, you will need documents confirming payment for the work: receipts, checks, warranty card.
IMPORTANT
When a citizen goes to court to return money for a service not provided, when there is no written confirmation of the fact of interaction with the performing company, witnesses are usually brought in. Indirect evidence is also used: paper or online correspondence between the client and the customer, SMS messages, bank account statements, etc. The entire collected documentary base is attached to the drawn up claim and sent (handed in person) to the performing party.
How to return money for a service not provided - step-by-step instructions
If the service is not provided, and the money has already been paid for it, it is not only possible, but also necessary to return it. The procedure begins with filing a claim with the contractor.
How to file a claim for a refund
The claim is addressed to the service provider - an organization or an individual entrepreneur, and is drawn up in free form. Be sure to indicate:
- last name, first name and patronymic of the customer (sender of the claim), his residential address and telephone number for communication;
- details of the service agreement violated by the contractor (number and date of conclusion), as well as the essence of the agreement (for example, “agreement for the provision of car repair services”);
- circumstances of violation of the contract (complete failure to provide services, provision of low-quality services or delay in fulfilling obligations);
- link to paragraph 1 of Art. 28 of the Law “On Protection of Consumer Rights”;
- method of returning funds and details for their return if non-cash payment is intended;
- requirement for a refund and deadline for fulfilling the claim.
The claim is drawn up in 2 copies: 1 is sent to the contractor, the second remains with the consumer (customer).
Sample claim for a refund for a service not provided
We suggest downloading a current sample claim for a refund for a service not provided:
Submitting a claim to the contractor
A claim can be submitted in several ways:
- Personally - by transfer to the performer.
If the service provider is an organization, it is advisable to transfer the claim to the manager’s secretary.
Important: you should definitely request a mark of acceptance of the claim on the second copy.
If the executor is an individual entrepreneur or an organization that does not have a secretary position, the claim can be transferred personally to the individual entrepreneur or another employee. The main thing is to get an acceptance mark.
- By mail.
The letter of claim should be sent in a valuable letter with a list of attachments. Otherwise, if the case goes to court, it will be difficult to prove that the letter sent contained exactly a claim.
- By email.
This method makes sense to use if electronic correspondence is provided for in the contract for the provision of services or the email address of the company (IP) - the performer is listed on its official website.
The claim should be sent strictly to the email address specified in the contract! If the contract does not provide for filing claims online - to the address indicated on the official website of the contractor.
Timeframe for consideration of a claim
According to paragraph 1 of Art. 31 of the Law “On the Protection of Consumer Rights”, the contractor is obliged to satisfy the customer’s demands for a refund for an unprovided service within 10 days from the date of receipt of the corresponding claim.
If this deadline is missed, the contractor is obliged to pay the consumer a penalty in the amount of 3% of the price of the service for each day of delay.
If the contractor fails to respond to the claim within the prescribed period or gives an answer that does not suit the customer, it is advisable to file a claim in court to recover the unpaid amount of money.
About other methods of pre-trial protection of consumer rights:
How is pre-trial protection of consumer rights carried out? More details
Which court should I go to?
A consumer protection claim should be filed:
- to a magistrate - if the value of the claim is up to 100,000 rubles inclusive;
- to the district court - if the value of the claim exceeds 100,000 rubles.
In this case, the plaintiff has the right to choose whether to go to court at his place of residence or at the location of the defendant, that is, the executor.
How to file a claim
We wrote in detail about how to draw up a statement of claim for the protection of consumer rights in another article:
Statement of claim for consumer protection - sample Read more
The text of the claim should indicate the same data and circumstances that were indicated in the claim for the return of funds.
General legal requirements for a statement of claim and rules for its preparation:
Statement of claim to court Read more
Attention: in addition to money for the service not provided, the contractor is charged a fine for refusing to voluntarily satisfy the consumer’s request (3% of the cost of the service not provided for each day of delay), as well as compensation for moral damage, if any, incurred by the customer.
More details about moral damages under the consumer protection law:
Moral damages under the Consumer Rights Protection Law Read more
Sample statement of claim for recovery of money for unprovided service
Download a current sample statement of claim to recover money from the contractor for an unprovided service:
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Penalty for the consumer for refusing the service
In accordance with Art. 32 of the Law “On the Protection of Consumer Rights”, the consumer has the right at any time to refuse the contract for the provision of services, that is, the service itself.
There are no penalties for this. If the contract stipulates a condition on the consumer’s obligation to pay a fine in case of refusal of the service, it is not enforceable due to its nullity (clause 15 of the Resolution of the Plenum of the Supreme Court dated November 22, 2016 No. 54).
Attention: the provision regarding the fine from the consumer for refusing the service is negligible!
However, this does not mean that the contractor who refuses the service does not incur any costs. He is obliged to reimburse the contractor for all costs he incurred in connection with the execution of the contract.
In other words, if the contractor has already started providing the service and spent a certain amount on it, the customer who refused the service must reimburse this amount.
If the performer refuses an already paid service, the entire amount is returned to him minus the contractor’s expenses.
Attention: the provision for reimbursement of expenses incurred by the contractor does not apply to cases where refusal of the service is caused by failure to provide or improper provision of the service.
Application for recovery of the cost of uncompleted work: features
Applications are submitted to the magistrate's court if the amount of the claim is up to 50 thousand rubles. If the claims are higher, the claims are filed in federal court. When preparing, you can use any standard form. The printed sample form should be completed properly, clearly indicating your requirements and referring to Article 131 of the Civil Code of the Russian Federation.
When filling out application forms, it is necessary to indicate the pre-trial procedure for resolving the dispute, if any.
The claim should not be certified by a notary; this is not provided for by law.
