Law on Consumer Rights: Imposing Services

Very often, contracts contain conditions that maximally guarantee the fulfillment of obligations by counterparties. Among them are different security measures, the ability to unilaterally break an agreement, etc. At the same time, the self-responsibility of business entities is minimized and limited. Moreover, to extract profit at the maximum amount, increase sales, sellers try to impose additional services. Their implementation occurs in different ways. For example, the imposition of additional services is carried out within the framework of the main contract. Some sellers put forward a condition under which the contract is signed only in case of concluding agreements. . Let us further consider what the law on the imposition of services says.

Freedom of contract

Such a principle is provided for by regulatory enactments. Acting in accordance with it, sellers connect the client's receipt of the main service through the purchase of another, additional one. In some cases, economic entities require payment in excess of the contractual price. For example, it may be payment of interest for opening and servicing a loan account, for early repayment of a loan, and so on. All this is the imposition of additional services. The accompanying conditions are set by the sellers unilaterally and are fixed in standard forms. Customers can enter into such agreements solely by joining the services offered in general. This significantly limits the freedom of contract, as it excludes the possibility of counterparties to participate in the creation and establishment of conditions.

Consumer rights Protection

ставит клиентов в невыгодное положение. Imposing services puts clients at a disadvantage. The buyer becomes a weaker participant in the relationship. Accordingly, increased protection of the state is needed. This, in turn, requires limiting the freedom of contract for another participant. When purchasing services, goods, works to meet domestic needs, the buyer implements his rights, in accordance with the provisions of the Civil Code. In addition, the guarantee is also established by Federal Law No. 2300-1. What does the Consumer Rights Act say ? рассматривается в ст. The imposition of services is considered in art. 16. It says that the terms of the agreement that infringe the interests of the buyer, in comparison with the rules provided for by legal acts, are considered invalid. Losses that entailed the imposition of services, article 16 instructs the seller (the executor, the manufacturer) to compensate in full.

Prohibitions

за плату, возложение на клиента обязанностей, не предусмотренные нормами. It is not allowed to impose a service on a consumer for a fee, impose obligations on the client, not provided for by the rules. It is forbidden to stipulate the purchase of one product by the acquisition of another. All this is a violation of the consumer's right. , кроме прочего, может осуществляться и в период гарантийного срока. The imposition of services , among other things, can be carried out and during the warranty period. Statutory acts prohibit the connection of the satisfaction of the requirements of the buyer, filed within the service period, with conditions not related to the defects of the goods. Often, the guarantee obligations are formulated so that the buyer is forced to apply only to a particular firm, otherwise he will be denied service. The seller is prohibited to perform additional work, render services for a fee without the client's consent. The buyer can refuse to pay for them. If the amount has already been paid, he has the right to demand a refund.

A responsibility

What threatens to impose the service? " указывает на возможность привлечения нарушителей норм к ответственности. The Law "On Protection of Consumer Rights " indicates the possibility of bringing offenders to account. In particular, administrative sanctions are envisaged. For inclusion in the agreement of conditions that violate the interests of the buyer, a fine is established. It is 1-2 thousand p. For entrepreneurs, and 10-20 thousand rubles. - for legal entities. The relevant provisions are contained in Art. 14.8 of the Administrative Code.

Timing

, покупатель может привлечь к административному наказанию нарушителя в течение года с даты совершения нарушения. If there was an imposition of services , the buyer can bring to the administrative punishment of the offender within a year from the date of the violation. The corresponding position is present in Art. 4.5 of the Code of Administrative Offenses (Part 1). нельзя считать длящимся нарушением. The imposition of services can not be considered a continuing violation. It is recognized completed at the time of the conclusion of the agreement, which contains inadmissible conditions. In case of revealing the fact of infringement of the interests the buyer can address in court. It should be borne in mind that claims that amount to less than 1 million rubles are not subject to duty. In addition, the buyer can apply to the territorial unit of Rospotrebnadzor.

Banking practice

было очень распространено. More recently, in the credit sphere, the imposition of services was very widespread. In particular, citizens who took out a loan could not repay the debt ahead of schedule without paying the so-called "fine". In addition, additional interest was charged for maintaining the account. Currently, loan agreements are concluded on the condition that the insurance agreement is signed. ? Can this be seen as imposing services ? It is worth noting that the opinions of experts on this issue diverge.

Inadmissibility of entering into an insurance contract

Experts who hold the opinion that the signing of an additional agreement to the credit, violates the rights of consumers, explain their position as follows. Statutory acts provide for compulsory and voluntary insurance. In this case, the first is allowed only in cases prescribed by law. Repayment of obligations can be secured by pledge, penalty, surety and other means. The latter, however, does not mean the possibility of inclusion in the specified list of the insurance contract. Some instances directly prohibit this. In particular, Omsk Regional Court in one of its definitions pointed out the inadmissibility of binding the conclusion of a loan agreement by signing an insurance contract, establishing the right of a banking organization to demand an early repayment of an obligation with interest payment, and to levy a property pledged as collateral for non-fulfillment by the client of an attendant condition . The FAS of the Central District also adheres to the same position. The court points out that if the duty of the client to insure life is not established by law, then it is impossible to include the corresponding condition in the loan agreement.

Another opinion

A number of experts say that the inclusion of an additional condition on insurance in a loan agreement is permissible. As the main income of the debtor is his salary. Her receipt, in turn, directly depends on the state of his health. Insurance of bank risk, respectively, is associated with ensuring the repayment of the loan. This opinion was expressed in one of the cassational definitions of the St. Petersburg City Court. The admissibility of the inclusion in the loan agreement of the conditions for compulsory insurance is directly provided for in the current instructions of the Central Bank. At the same time, in the process of calculating the loan, the banking organization is obliged to take into account the debtor's payments to the benefit of third parties. These include, among other things, insurance premiums.

Additionally

Controversial situations also arise regarding the requirement of the bank to conclude an insurance contract with a specific organization. Otherwise, the loan will be denied. The arguments that such a claim violates the consumer's right to freedom of choice of the party to the agreement and leads to an increase in the amount of expenses, relates the purchase of one product by the purchase of another, the courts consider unreasonable. Explain their findings as follows. To make a decision to issue a loan, the bank must be sure that in the event of an insurance event the organization will be able to compensate for the losses. If it does not exist, the credit structure can not recognize the obligation as secured. The banking organization is interested in ensuring that the debtor is insured in a solvent company.

Explanations

FAS of the Urals Okrug indicated that the requirements of clause 2 16 of Article ФЗ No. 2300-1 apply to situations where the product is sold by one person. Accordingly, the inclusion of the condition of compulsory insurance is not subject to prohibition. In the later decrees it was stated that such a requirement of the bank substantially restricts the rights of the consumer, placing their implementation in dependence on the actions of third parties. Two services - insurance and lending - are independent relative to each other, and their imposition is not allowed. The fact that two people enter into agreements with the client, has no legal value for compliance with regulatory requirements. It does not follow from the content of article 16 that it does not apply in cases where additional services are provided by a third party that has nothing to do with the main contract.

Special situations

Another situation is observed in the case when the consumer had the opportunity to formalize a loan agreement without concluding an insurance contract. In the information letter of the Presidium of the Supreme Arbitration Court in paragraph 8 it is stated that such a situation is permissible. In the example, which is given in the document, when granting a loan, the bank was guided by the rules developed by it. In accordance with them, insurance was included in the list of measures to minimize the risk of non-repayment of the loan. At the same time, the rules permitted the granting of a loan even in the absence of a concomitant contract. However, in this case, an increased rate was set. The bank managed to prove that the difference between tariffs is not discriminatory. Moreover, the decision of the credit institution to issue funds did not depend on the client's consent to insure his life in favor of the bank. In the loan agreement, there was also a condition that the amount of debt is reduced by the amount of compensation, upon the occurrence of an accident. YOU confirmed that the difference between the rates was quite reasonable. In the application, the client chose the option of obtaining a loan with a lower tariff, but with a mandatory condition for insurance. Having studied the circumstances, the court came to the conclusion that there had been no imposing of services.

Early repayment of a loan

As stated above, the practice of establishing "fines" for repaying obligations before the deadline was widespread. Now it is reduced to nothing. Normative acts allow repayment of obligations by the client ahead of schedule, unless another is established by law and does not follow from the essence of the contract. This possibility is provided for in Art. 810 CC. Legislation stipulates its implementation solely by the consent of the lender, without relating to the need to pay a commission. According to Art. 393 CC, the property of the debtor may be levied in the event of failure to perform or improper fulfillment of contractual terms, that is, in case of delay. The actions of the entity that prematurely discharges the obligations are not related to the violation of the agreement. Accordingly, they do not entail consequences in the form of the creditor's right to present additional property claims and the debtor's obligations to satisfy them.