In Russian legislation governing the protection of consumer rights, the term “substantial shortage of goods” is used. What are the features of the use of this phrase? What is the significance of a significant lack of goods in terms of the exercise by consumers of their rights? What are the criteria for classifying certain flaws as significant, in accordance with the provisions of the law and the position of the courts?
Identification of a significant deficiency
A significant shortcoming of a product is, according to a widespread definition, a flaw, a defect or another sign characterizing the impossibility of using a particular product for its intended purpose without investing in its possible repair of funds commensurate with market value. A phenomenon of this type is also often understood as a property that constantly manifests itself even after the fact of eliminating the first signs of inoperability (for example, due to imperfection of the technological concept of the product).
In this case, not only a significant shortage of goods may be encountered. Work, services are categories in relation to which signs may also be observed, to some extent similar to those that we have listed above. Of course, such phenomena are not material, and therefore the nature of the corresponding characteristics will be different, associated more with the assessment of the result of the work of the service provider.
The concept of a significant shortage of goods is closely related to the rights of the consumer. The fact is that a person who has bought a thing characterized by the above characteristics has the right in many cases to refuse a transaction to acquire products. A similar rule also applies to work and services.
Claims for services: legislative aspect
Consumer protection of their rights in terms of the use of services is an interesting legal category. Let's consider it in more detail. The main source of relevant information for us will be article 29 of the Law “On the Protection of Consumer Rights”. In particular, it can be noted that this legal act contains provisions that determine the length of the period during which the consumer has the right to send to the service provider or contractor, if it is a question of performing work, claims regarding the quality of services.
So, in the general case, the client can present the relevant requirements if he finds flaws in the results of work or the provision of services during the warranty period. And if it will be absent, then within 2 years (if we are talking about shortcomings regarding real estate, then within 5 years).
Significant shortcomings in practice
How can significant product flaws be detected? Does it matter to which category of things this or that product belongs - to ordinary products or, for example, to technically complex ones? At the very beginning of the article, we examined the criteria according to which significant shortcomings of the goods are recorded. In particular, if the buyer during operation discovered a defect that cannot be cheaply eliminated, or which manifests itself even after the repair.
Thus, the main tool for detecting significant shortcomings of goods is the practice of using them. As for technically complex products, in order to correlate their status with the complex of consumer rights, it makes sense to pay attention to article 503 of the Civil Code of the Russian Federation.It says that in relation to products that are technically complex and have identified significant shortcomings, a person has the right to demand a replacement, repair it for free, or return the goods to the store with a refund of its value. It can also be noted that, in accordance with Article 475 of the Civil Code of the Russian Federation, the buyer chooses one of the options at his discretion.
The disadvantages of the product in the spectrum of other factors of the realization of consumer rights
There are a lot of reasons to return a product or refuse to pay for services, if you follow the provisions of the legislation of the Russian Federation. So, for example, a consumer may exercise the right not to fulfill his part of the contract of sale or provision of services if:
- the seller did not provide reliable information about the product (work, service);
- the retailer sold low-quality goods (provided low-quality service);
- the seller violated the terms for the transfer of goods that had been paid in advance.
It can also be noted that the buyer or client has the right to refuse to fulfill its part of the contract with the supplier, not only because of violations of their rights, but also due to some subjective reasons (which, in particular, are set out in articles 25 and 26.1 of the Law “On consumer protection ”). At the same time, as lawyers note, the exercise by the buyer or user of services of the right to refuse to fulfill the contract with the supplier is most often due to factors set forth in article 18 of the Law. That is, those that are connected precisely with the defects of the goods. The paragraphs referred to thus allow the defects of the goods to be substantial and ordinary. We’ll talk about this.
Significant and common flaw in relation to consumer rights
Russian law allows the buyer of the product or user of the service to refuse to comply with the terms of the relevant contract with the seller or service provider if the goods or the provided service (work performed) have deficiencies - as we noted above, substantial and ordinary. What is the relevance of the flaws found on the product to one or another type? As a rule, the most significant are the significant disadvantages of a technically sophisticated product. The fact is that in relation to this type of product, the implementation of the corresponding consumer rights is possible only if the flaw is sufficiently serious, that is, meets the criteria set out at the beginning of the article.
Of course, the buyer has a large number of other reasons for refusing sales transactions. So, for example, if a person has discovered that the product is not at all significant, but a regular flaw, then he can return it to the store within 15 days after purchase. A similar rule applies if the item was repaired within 30 days or more in each year of the warranty period. Thus, Russian law includes a sufficiently wide range of consumer protection mechanisms for their rights.
Technically sophisticated product: the evolution of legislation
As we determined above, the significant shortcomings of a technically complex product are extremely important in terms of the exercise by consumers of the rights to exchange or return products with defects. That is, if a technically sophisticated product has just significant shortcomings, only this can be the main reason for its return or exchange.
Experts note that the legislation of the Russian Federation, which regulates the criteria for classifying a product as technically complex, noticeably evolves over time. What is this expressed in?
So, for example, some experts note that the list of technically sophisticated goods recorded in legal acts, as a rule, increases over time. Moreover, norms are issued according to which various subtypes of technically complex goods are identified.Changes in legal acts are mainly due to the fact that the Russian consumer is gradually mastering more and more new types of devices. If, for example, in the Decree of the Government of the Russian Federation dated 05.13.1997, vehicles, motorcycles and other vehicles belonged to technically sophisticated goods, then in a similar type of legal act adopted on 10.11.2011, the list of relevant products increased significantly.
How to determine the materiality of a flaw
We study the aspect that reflects how the significant shortcomings of the product are determined. That is, we need to identify the criteria according to which this or that flaw qualifies as essential. As we have noted above, the factor of attributing a deficiency to a specified type is especially important in cases where the product belongs to the category of technically complex. In this aspect, we will once again make sure that the relevant legislation does not stand still (we said above that evolutionary changes are characteristic of it).
Russian lawyers distinguish three historical groups of criteria according to which a significant shortage of goods is determined. Consider them.
Actually, we cited one of those at the beginning of the article. In accordance with the definition noted by us, a significant shortcoming of a product is primarily a fatal flaw, or one that requires investments disproportionate to the market value of the product, or manifests itself repeatedly even after repair. However, this wording did not appear immediately in the legislation.
One of the first editions of the Law "On Protection of Consumer Rights" gave a slightly different definition of a significant shortage of goods. Such a phenomenon was understood as flaws that suggested the inability to use the thing for its intended purpose, or those due to which the buyer was deprived of the opportunity to use the product as planned at the conclusion of the contract.
Another version of the provisions, according to which the shortage of goods was qualified as substantial, appeared in the legislation in 1999. The wording, as some experts note, has become narrower. So, in that part of the law, which explained that it was a significant shortcoming of the goods, it was said that such should be understood as a flaw, eliminated only because of the high time costs. In turn, the modern definition of a significant shortage of goods, given by us at the beginning of the article, appeared in 2004.
Among Russian lawyers, the point of view is widespread, according to which a significant flaw is legitimate to understand a flaw that manifests itself immediately after repairs in a certain functional area of the product purchased in the store. That is, experts believe, there is no need to maintain statistics on the occurrence of breakdowns - if a thing stopped working after the first repair, then this is a clear indicator that it has significant shortcomings. However, there are lawyers who do not share this point of view. In their opinion, this phenomenon cannot be considered sufficiently frequent. Such a low statistical significance of such cases makes it possible to separate them into a separate category of precedents, however, using such phenomena as one of the key criteria for a significant shortage of goods is not entirely advisable.
Identification of significant deficiencies: position of the courts
Some experts believe that the current criteria relevant to the term in question are far from ideal. Therefore, the study of the problems of such a phenomenon as a significant shortage of goods, the definition of the term are tasks that can be solved at the level of Plenums of the Supreme Court of the Russian Federation. So, for example, in the Decree of the Armed Forces of the Russian Federation dated 12.06.2012, there is an explanation regarding the specifics of various types of significant shortcomings of goods.The document reflected the criteria for irreparable flaws, those that require high costs, those that are eliminated after a significant cost in time, those that manifest themselves again after repair, etc.
Thus, in Russian legal practice, the most important role is played not only by the provisions of federal law, but also by the position of the judiciary. Many experts believe that the current spectrum of opinions, especially at the level of the RF Armed Forces, predetermines a significant bias in the wording in favor of the consumer. So, for example, in one of the interpretations of the Supreme Court, a significant flaw can be understood as a flaw that manifests itself repeatedly.
This situation, according to lawyers, can be interpreted in terms of the simultaneous application to several, independent of each other, shortcomings of the product, making it impossible to use it comfortably. As a result, goods can be returned to stores more often (accordingly, there will be more litigation). This may predetermine some imbalance in relation to the principle of proportionality of the plaintiff’s requirements to the defendant, the observance of which is the most important condition for the stable functioning of the legal system.
Return or exchange goods: judicial practice
We determined that the rights of Russian consumers with respect to the purchase of low-quality, having significant shortcomings, goods are adequately protected by law. However, what about law enforcement and judicial practice? The opinions of various experts regarding this area of legal relations are very dissimilar. Some lawyers note that among Russian retailers and manufacturers of goods, the level of legal culture is gradually growing.
That is, if the buyer brings a product that is clearly inoperable, then, as a rule, the seller without any questions fulfills everything that the law prescribes. However, there are retailers who, for example, may oppose the buyer's desire to exchange or return the thing, stating that the product was used incorrectly - which predetermined the detection of a significant shortage of goods. The result of such disagreements is going to court. What is the specificity of judicial practice in the field of consumer protection when it comes to the replacement or return of goods with significant shortcomings?
The main factor affecting the court decision: a significant shortage of goods should be fixed by independent experts. Another important circumstance is that the specialists who are contacted by the plaintiff and defendant must determine whether a defect has arisen as a result of poor-quality assembly of the product or has appeared due to improper use of the goods. Merchandising expertise is being conducted. Thus, judicial practice reflects, as many lawyers believe, a fairly neutral approach by judges to review cases. There is no clear trend in making decisions in favor of plaintiffs or defendants. And this is despite the fact that in the legislation, experts believe, there is a noticeable bias in favor of the consumer.
Much, of course, is decided by the examination, which is designed to reveal how a significant shortage of goods was formed. The Law on the Protection of Consumer Rights, thus, despite a tangible bias in favor of the buyer, involves quite complex and in some cases costly procedures related to determining the party responsible for the appearance of a defect in the goods.
Balance of interests required
Many lawyers believe that the legal regulation of the relationship between the buyer and the seller (service provider) should, on the one hand, meet such a criterion as restoring consumer rights, and on the other, protect the supplier from excessive burdens.Thus, the return of goods, a significant deficiency of which was discovered, should be carried out, as we have noted above, on the basis of the principle of proportionality that is significant in any legal system, including the Russian one.
That is, the buyer's requirement must be satisfied, but only if it is proportionate to the recorded violation. Actually, the role of merchandising expertise, as many experts believe, is largely related to the need to determine the required balance in terms of the proportionality of the buyer's requirements and violations of the law governing consumer rights committed by the seller or service provider.
