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3. The form of the contract of retail purchase and sale. Features of making contract of retail purchase and sale.

Before to pass to consideration of the form of the contract of retail purchase and sale, we will specify concept "form". In the encyclopaedic dictionary "form" it is defined as: 1) an external outline, an exterior, subject contours; 2) external expression of any maintenance; 3) the established sample something [287].

In domestic civil law there is no uniform understanding of the form of the civil-law contract. Interesting point of view S.A is represented.

Hohlova which "the contract form" suggests to understand as concept "all set of means and ways of the image, fixing and transfer of the contractual information". Thus, with reference to making contract in due form with it differ: the offer form, the form of the acceptance and the form of the actions made for the purpose of a concrete definition of the maintenance of the contract, entering into it of changes, fixings and settlements arisen between the parties разногласий1.

Now in the legal literature usually under the contract form it is accepted to understand a way of expression of will. Thus, for making contract the will of its parties should be expressed outside: by verbal expression of will (oral making contract) or by written expression of will (written making contract - in the simple or notarially certificated form).

More often the contract of retail purchase and sale consists in the oral form as it is usually executed at its most conclusion. However, in the literature devoted to the given question, there is also an opposite opinion. So, according to V.V. Vitrjanskogo, because the offer in the contract of retail purchase and sale in most cases is written, (the given statement communicates it with presence at the seller of written documents on the goods) hence, and the contract consists in writing. And the oral form of the contract of retail purchase and sale is, according to its point of view, only an exception of the given rule. C V.V. Vitrjanskogo's opinion it is difficult to agree, as hardly it is possible to consider the price list on the goods, engineering specifications to it and so forth as the written offer of the contract of retail purchase and sale. [288 [289] [290]

In that case when there is no rupture in time between the moments of occurrence and the termination of the rights and duties of the parties, the contract of retail purchase and sale should be concluded orally always, except cases when for pego by the legislator it is provided, that non-observance of the simple written form of the contract involves its invalidity. However such consequence should be directly specified in the law or be established by the agreement of the parties. As to the contract of retail purchase and sale for the present moment of similar instructions in the law is not present [291].

To the contracts concluded in the oral form, are equated also dogovory, concluded by implicative actions that is when will to conclude the contract of retail purchase and sale appears from the behaviour of the person, But here it is necessary to notice, that making contract by implicative actions is supposed only in case the law supposes its conclusion in the oral form (item 2 of item 159 GK the Russian Federation).

If for the contract the written form is ordered, fulfilment of implicative actions replace it cannot and, hence, legal effects does not attract. The exception constitutes only the position containing in GK the Russian Federation according to which the written form of the contract is considered observed if in reply to the written offer to conclude the contract in time, established for ss the acceptance, the person who has received the offer to conclude the contract, actions on performance of the treaty provisions specified in it (payment of the corresponding sum, etc.) (item 3 of item 438 and item 3 of item 434 GK the Russian Federation) have been made.

If the moment of the conclusion and execution of a contract of retail purchase and sale do not coincide, in this case the contract should be made out in writing as on the party of the seller in this case the legal body or the individual businessman always acts. A question, concerning what to understand as the written form of the contract of retail purchase and sale, is debatable. So, according to A.E.Sherstobitova, in that case when the moment of the conclusion and execution of a contract of retail purchase and sale do not coincide, cash either the cash-memo, or other document confirming payment of the goods, represent the written form договора1. In opinion I.e. Abovoj, the check or other document on payment is not the written form of the contract of retail purchase and sale, but in that case when the moment of the conclusion and execution of a contract of retail purchase and sale do not coincide, the written form of the contract is considered observed with delivery to the buyer of the check or other document confirming payment of the goods [292 [293].

On the given question the author of dissertation adheres to the point of view of those authors which believe, that because neither the check, nor other document confirming payment of the goods, do not meet requirements of item 160 GK the Russian Federation about the written form of the contract, to consider as their written form of the contract of retail purchase and sale it is impossible [294].

When the contract of retail purchase and sale contrary to law instructions (item 1 of item 161 GK the Russian Federation) consists in the oral form, in case of occurrence between the parties of dispute on, whether the contract has been made, non-observance of the ordered written form of the contract complicates position of the seller [295 [296] [297]. So, in this case at proving of the fact of the conclusion of such contract of retail purchase and sale in court, the seller will have the right to use the limited circle of proofs: any evidences provided by the civil remedial legislation except for a testimony (item 1 of item 162 GK the Russian Federation).

On the given question in the literature it is fairly noticed, that specified norm GK the Russian Federation is excessively rigid in relation to the seller and strikes at its rights in the event that on the party of the buyer under the contract of retail purchase and sale the legal body (the individual businessman) 1 acts.

According to the author of dissertation, in the given situation between legal bodies (individual businessmen), being parties of the contract of retail purchase and sale, there is no economic inequality which could cause granting to the buyer - to the alien of statutory advantages. So, economic activities of any organisation are closely connected with registration and the conclusion of various contracts, i.e. the specified subjects on a sort ' the activity should know and observe requirements of the legislator to registration of contracts. Thus, according to the author of dissertation, on legal bodies (individual businessmen), being the parties of the contract of retail purchase and sale, in case of infringement of requirements of the legislation concerning the contract form, the equal negative consequences, uses of a testimony concerning to impossibility should extend

About

Concerning the making contract fact orally. [298 [299]

At the same time, the interdiction of use of a testimony extends, probably, only on cases when the fact of making contract or its condition are challenged. If dispute concerns the fact of execution (default) with the contract party, the oral form of the contract does not interfere with the admission of witnesses and from the seller.

As to the notarial form of the contract of retail purchase and sale in practice it in essence does not meet though by the legislation and it is not excluded (item 163 GK the Russian Federation).

Making contract are actions of the parties on achievement of the agreement and its registration in the provided order (item 432 GK the Russian Federation). Thus, the legislator has provided two conditions which performance is obligatory at making contract: observance of the form of the contract, and achievement by the agreement parties on all its essential conditions.

The legislator allocates two necessary stages of procedure of making contract: the offer to conclude the contract (offer) and acceptance of this offers (acceptance). At making contract of retail purchase and sale these stages can or coincide on time, (the contract consists between the present parties), or are not present (the parties are among themselves spatially remote).

Procedure of making contract of retail purchase and sale possesses a number of the features distinguishing it from procedures of the conclusion of other contracts of purchase [300 [301]. First, feature of making contract of retail purchase and sale is expressed in a way of its conclusion - by joining, and working out of its conditions (item 493 GK the Russian Federation contains a direct reference on item 428 GK the Russian Federation (Contract of adhesion).

According to item 428 GK the Russian Federation the contract of adhesion admits the contract which conditions are defined by one of the parties in data cards or other standard forms and can be accepted other party precisely by joining to the offered contract as a whole. Thus, at making contract of joining of the treaty provision are established only by one party, and other party can conclude such contract, only having agreed with these conditions, and is deprived possibility them to supplement or изменять1. So, the seller under the contract of retail purchase and sale, under the general rule, always incurs the initiative, offering other party, the buyer to make the contract, i.e. always acts as the tenderer under the contract. The buyer expresses the consent, by joining to treaty provisions [302 [303].

Thus, the contract of retail purchase and sale is the contract of adhesion from what follows, that the buyer cannot offer the treaty provisions, and only join the developed standard conditions, or not to conclude the contract.

In item 428 GK the Russian Federation has told, that at joining making contract data cards or other standard forms are applied. It is represented, that in this case it is a question only of a case of making contract of retail purchase and sale in writing. When the contract of retail purchase and sale consists orally, its conditions can be defined starting with: the price list on the goods, the information on the goods on packing, the documentation to the goods, etc. And if in case of written making contract of retail purchase and sale the buyer joins its conditions by a signature establishment on the data card, other standard form in case of oral making contract the buyer joins treaty provisions by payment of the goods or by means of other actions. We will notice, that standard forms, data cards have found the widest application in retail purchase and sale through the Internet. As a rule, in this case the buyer always is offered to fill the electronic standard data card which then is sent to the seller by click by the mouse on a certain badge on the screen.

We already noticed, that the noncommercial organisation can be the seller under the contract of retail purchase and sale both commercial, and. The legislator in item 428 GK the Russian Federation does not open the concept maintenance "the party under the contract of adhesion". The judiciary practice analysis has shown, that the party of the contract of adhesion developing its conditions, vessels is understood as only commercial organisation [304]. Thus, norms GK the Russian Federations regulating the contract of adhesion and establishing responsibility, including, the counterpart of the buyer under the contract of retail purchase and sale, on the noncommercial organisations do not extend. According to the author of dissertation to avoid in practice of possible infringements of the rights of buyers under the contract of retail purchase and sale from sellers - the noncommercial organisations, it is necessary for legislator to specify possible subject structure under the contract of adhesion and to bring in item 428 GK the Russian Federation respective alterations.

So, the author of dissertation offers to state item 1 of item 428 GK the Russian Federation in the following edition:

"The contract of adhesion the contract which conditions are defined by one of the parties (the commercial or noncommercial organisation) in data cards or other standard forms admits and could be accepted other party precisely by joining to the offered contract as a whole".

Other party of the contract of adhesion any can be physical or the legal body. In the event that on the party of the buyer under the contract of retail purchase and sale the citizen-consumer item 2 of item 428 GK the Russian Federation gives it the right to demand change or contract cancellation if the contract of adhesion though does not contradict the law and other normative acts acts, but deprives of its rights usually given under contracts of such kind, or excludes or limits responsibility of other party for infringement of obligations, or contains other, obviously burdensome conditions for the joining party which she, proceeding from the reasonably understood interests, would not accept at presence at it possibility to participate in definition of treaty provisions.

The certain ambiguity arises in that case when on the party of the buyer under the contract of retail purchase and sale the legal body (the individual businessman) acts. So, in p, 3 items 428 GK the Russian Federation is said, that in the presence of provided items 2 of burdensome treaty provisions of joining, the requirement about its cancellation or the change, shown by the party which has joined the contract in connection with realisation of the enterprise activity, does not come under to satisfaction if the joined party knew or should know, on what conditions concludes the contract.

Not absolutely clear the formulation of the legislator - "in connection with realisation of enterprise activity" is represented. So, similar

The formulation is used in item 492 GK the Russian Federation, whether-sale at definition of the purpose of use of the goods under the contract retail kup: "... For the personal, family, house or other use which have been not connected with enterprise activity".

In this case, proceeding from interpretation of the specified norm by the Decision of Plenum of Supreme Arbitration Court RF1, us already was

' the Decision of Plenum of the Supreme Arbitration Court of the Russian Federation from October, 22nd 1997г. № IS "About some questions connected with application of positions of the Civil code of the Russian Federation about the contract of delivery" * R 1 II heads of the dissertation we in detail stopped on this question.

The conclusion according to which the legislator in item 492 GK the Russian Federation assumes is drawn, as the legal body (the individual businessman) can act on the party of the buyer under the contract of retail purchase and sale and get the goods on purpose, the enterprise activity not connected with realisation (in the event that it gets the goods for maintenance of its activity as the organisation or citizens and on-businessman (office equipments, office furniture Etc.).

Thus, in the event that the legislator puts in the formulation of item 428 GK the Russian Federation the same sense, as in item 492 GK the Russian Federation at joining of the legal person (the individual businessman) to treaty provisions of retail purchase and sale for maintenance of its activity as the organisation (the individual businessman), on it position extends and. 2 items 428 GK the Russian Federation about granting to it of the right to demand change or contract cancellation, in case of the specified circumstances. And in a case, when the specified subjects join the contract with a view of direct realisation of enterprise activity (resale, processing etc.), it is necessary to apply norm of item 3 of item 428 GK the Russian Federation.

However the given conclusion will not absolutely be adjusted with norm of item 2 of item 400 GK the Russian Federation according to which the agreement on restriction of the size of responsibility of the promisor of joining if the size of responsibility for the given kind of obligations is certain by the legislator on whom as the creditor the citizen acts admits insignificant only. In this case it turns out, that if the legal body (the individual businessman) joins the contract of retail purchase and sale for the purpose of maintenance of its activity as that its right to cancellation and contract change is provided by position and. 2 items 428 GK the Russian Federation which is applied even if the contract of adhesion does not contradict the law, i.e. establish more preferential mode in comparison with item 2 of item 400 GK РФ1. It is represented, that it is not absolutely logical.

According to the author of dissertation, in order to avoid problems and misunderstanding in practice, it is necessary for legislator or to extend action of item 2 of item 400 GK the Russian Federation as well to the businessmen concluding the contract of adhesion with a view of, nanosecond connected with direct realisation of enterprise activity, or to specify in item 3 of item 428 GK the Russian Federation, that in the presence of the circumstances provided in item 2 of given article, the requirement about cancellation or about the contract change, shown by the legal body (the individual businessman), joined the contract, does not come under to satisfaction if the joined party knew or should know, on what conditions concludes the contract.

On the given question in the legal literature the point of view, according to which item 3 st prevails, 428 GK the Russian Federation operates in all cases when the joining party under the contract is the legal body (the individual businessman), i.e. action of the given norm communicates the majority of scientists-jurists not for the purpose of joining to the contract as it becomes the legislator, and with the status of the legal person (the individual businessman) [305 [306].

In that case when on the party of the buyer under the contract of retail purchase and sale the citizen-consumer acts, its rights as joining party of the contract also are protected on the basis of item 1 of item 16 of the Law about ZPP (Invalidity of the treaty provisions striking the rights of the consumer). In item 1 of item 16 of the Law about ZPP it is said, that "the treaty provisions striking the rights of the consumer in comparison with rules, the established laws or other legal acts of the Russian Federation in the field of protection of the rights of consumers, admit void". It is represented, that expression "the treaty provisions striking the rights of the consumer" is necessary for treating more widely, than "оіраничение the size of responsibility under obligations" (item 2 of item 400 GK the Russian Federation). It is connected by that the conditions striking the rights of the consumer, can be several kinds:

- Reducing volume of the rights of the consumer;

- Reducing volume of duties and responsibility of the seller (the manufacturer, the executor);

- Establishing additional duties of the consumer;

- Establishing supplementary measures of responsibility of the consumer [307].

Thus, the basic consequence of inclusion of such conditions in the contract will be their invalidity, along with the validity of other part of the contract as, according to item 180 GK the Russian Federation, invalidity of a part of the transaction does not involve invalidity of other parts if it is possible to assume, that the transaction would be made and without the conclusion of its void part.

Proceeding from the aforesaid, it is possible to draw a conclusion, that item 2 of item 400 GK the Russian Federation is a special case p, 1 item 16 of the Law about ZPP, Necessity of special allocation in GK the Russian Federation norms about inadmissibility of restriction of responsibility of the promisor of joining is connected, probably, that it is the most widespread offence in relations with consumer participation.

Secondly, features of making contract of retail purchase and sale are connected by that it is the public contract (item 2 of item 492 GK the Russian Federation). According to the definition containing in item 426 GK the Russian Federation, the public contract the contract concluded by the commercial organisation and establishing its duties on sale of the goods, to performance of works and rendering of services which such organisation on character of the activity should carry out concerning everyone who to it will address [308] admits.

In spite of the fact that the noncommercial organisation can be engaged in retail purchase and sale if it serves achievement of the purposes for the sake of which it is created, and corresponds to these purposes, owing to express indication of the legislator by the given party of the public contract only commercial organisation can be. Thus, according to the current legislation the noncommercial organisations can be engaged

Enterprise activity on sale of the goods at retail, but action of norms of item 426 GK the Russian Federation about the public contract on them does not extend. In this connection, the author of dissertation believes what to connect realisation of norms about public contracts it is necessary with character actually carried out organisation of activity which in this case should be enterprise, instead of with a main objective of its activity.

Any physical or the legal body can be other party of the public contract. The analysis of item 426 GK the Russian Federation allows to draw a conclusion on features of a legal status of the parties of the contract of retail purchase and sale as public contract.

The seller under the contract of retail purchase and sale does not fall iod action of a principle of freedom of the contract (item 421 GK the Russian Federation), and has not the right neither to choose the buyer at own discretion, nor to solve a question on making contract. Refusal of the commercial organisation of the conclusion of the public contract in the presence of possibility to give to the buyer the corresponding goods is not supposed and can entail negative consequences for it according to norms of the civil and grazhdansko-remedial legislation.

Also, the commercial organisation which is the subject of the public contract, has not the right to give preference to someone from addressed to it concerning making contract. Conditions of the public contract should be established identical to everything, except those cases when laws or normative acts suppose granting of privileges for separate categories of buyers (for example, to veterans).

Under the general rule, disputes on conditions of the _razhdansko-legal contract can be left vessels only in the presence of the consent of both parties (except for material breach of the contract by other party (item 2 of item 450 GK the Russian Federation)). The disputes connected with the conclusion of public contracts, and also disagreements of the parties on separate conditions of such contracts should be considered judicially irrespective of, whether there is a consent of both parties. Besides, in case of evasion of the commercial organisation from the conclusion of the public contract, it can be concluded under compulsion under the decree, and the buyer has the right to demand from the commercial organisation of the indemnification, caused by evasion from making contract.

Feature of legal regulation of the public contract is also that in cases, statutory, to the Government of the Russian Federation is accorded to publish a right rules, obligatory for the parties at its conclusion and execution (typical dogovory, positions). So, according to item 2 of item 1 of the Law about ZPP the Government of the Russian Federation has the right to publish for the consumer and the seller (the manufacturer, the executor, the authorised organisation or the authorised individual businessman, the importer) rules, obligatory at the conclusion and execution of public contracts.

Being public, the contract of retail purchase and sale consists as a rule with use of the public offer. It is necessary to understand containing offer all the essential treaty provision or turned to an uncertain circle of persons in case the tenderer will accurately specify as the public offer, that he considers the offer as the offer [309] (item 1 of item 437 GK the Russian Federation) or from which the will of the person who are proposing marriage is seen to conclude the contract on the conditions specified in the offer with any who will respond (item 2 st, 437 GK the Russian Federation). Requirements to the public offer under the contract of retail purchase and sale differ depending on a place of the offer of the goods in relation to these goods: out of a place of its sale and in a place of its sale.

Concerning the contract of retail purchase and sale, the offer the seller of the goods out of a place of its sale in its advertising, catalogues and descriptions of the goods turned to an uncertain circle of persons, admits the public offer if it contains all essential conditions specified договора2.

Also, exhibiting in a sale place (on counters, in show-windows, etc.) the goods, demonstration of their samples or granting of data on the sold goods (descriptions, catalogues, pictures of the goods, etc.) in a place of their sale admits the public offer irrespective of, whether are specified the price and other essential treaty provisions of retail purchase and sale, except for a case when the seller has obviously defined, that the corresponding goods are not intended for sale (for example, the trading equipment, subjects of registration of a trading hall, show-windows etc.) (item 494 GK the Russian Federation).

Let's notice also, that the sample of the goods used thus should meet the requirements completely of quality and the safety, the shown legislation to the such goods. So, Federal arbitration court Volgo-Vjatskogo of district prizi is scarlet lawful impeachment on ch. 1 items 14.4 KoAP the Russian Federation the individual businessman using products with expired working life as the sample of the goods, exposed with a view of advertising in shop show-windows. The court gave reason for the position as follows. From item 494 GK the Russian Federation follows, that the seller who has exposed the goods in a place of sale (on counters, in show-windows, etc.) the goods, is obliged to conclude the contract of purchase on offered conditions including the goods which are on a show-window, except for a case when the seller has obviously defined, that the corresponding goods are not intended for sale.

Thus owing to item 495 GK the Russian Federation the information on the goods intended to sale should be full (including evident) and authentic, including about goods working life, In a considered case of proofs of that a foodstuff being on a show-window did not intend for sale as were exhibition samples (models of the goods), the applicant to court has not presented. Besides, according to ch. 2 items 3 of the Federal act from January, 2nd, 2000 № 29-FZ "About quality and safety of foodstuff", have expired the foodstuff, which working lives, admit poor-quality and dangerous and come under to recycling or destruction. Before acceptance and execution of the decision on its further use or destruction such production comes under to storage in a separate premise in a warehouse, in a refrigerator (the isolated chamber) with observance of the conditions excluding to it access.

Thus, the seller also it will be lawful to institute criminal proceedings under item 1 of item 238 UK the Russian Federation in storage or sale of the goods and production, not meeting the requirements of safety of a life or health of consumers [310].

Thus, concerning the contract of retail purchase and sale GK the Russian Federation directly establishes, that intention of the tenderer to conclude the contract with any responded should be not necessarily directly specified or otherwise be seen from the offer as it is necessary to conclude any other contract in case of the offer. In this case the form of the offer (exhibiting in a show-window, the offer in advertising, catalogues) should be considered as instructions on presence of such intention. It is represented, that this rule is focused on protection of the rights of buyers under the contract of retail kushsh-sale. On the given question the author of dissertation agrees with opinion of those authors which believe, that the order of making contract of retail purchase and sale is deprived any special specificity in comparison with other consumer contracts in this connection distribution of the given position is exclusive on the contract of retail purchase and sale by nothing обусловлено1. The offer of authors to extend the given rule about the public offer as well a pas others consumer dogovory, such, as the contract of hire, household podrjada etc. is represented fair

The public offer is possible both in written, and in the oral form (by radio, TV etc.).

According to item 433 GK the Russian Federation, the contract admits to prisoners at the moment of reception by the person who has directed the offer, its acceptance. Thus, according to item 493 GK the Russian Federation, under the general rule, the acceptance moment under the contract of retail purchase and sale is connected with delivery by the seller to the buyer cash or the cash-memo or other document confirming it оплату7. In that case when under the contract of retail purchase and sale delivery of the specified documents legislatively is not provided, there is a question, with what moment to connect reception of the acceptance and making contract. Probably, in this case it is necessary to consider as the making contract moment the moment of payment of the goods.

In other cases provided by the legislator, the offer acceptance under the contract of retail purchase and sale can represent put into words or corresponding behaviour (including by implicative actions) the consent with the offer conditions, made in the order ordered or specified by the tenderer.

Thirdly, specificity of making contract of retail purchase and sale is shown that the seller has certain duties before the buyer till the making contract moment, - so-called, precontractual duties.

If traditionally abstract possibilities субъектов1 the contracts fixed in the law in the form of their rights, turn to concrete possibilities in the presence of certain juridical facts (making contract, injury and t.d,), and since this moment between subjects of the contract arises the legal relation which participants possess the certain rights and duties, bear responsibility before each other in a case with the contract of retail purchase and sale in some cases business is differently. Certain abstract possibilities of consumers turn to their rights already only at intention to conclude the contract of retail purchase and sale.

Thus, between the seller and the buyer under the contract of retail purchase and sale there are the precontractual relations regulated in an imperative order by the legislator. Object of the given legal relation is the precontractual information on the goods [311 [312].

The federal act from July, 27th, 2006 № 149-FZ "About the information, information technologies and about information protection" ' 1 (item 2) contains following standard definition of the information are data (the messages given) irrespective of the form of their representation.

The information given to the buyer about the goods, offered to sale (item 495 GK the Russian Federation, Law item 10 about 31Ш), about the seller (manufacturer) and a mode of its work (Law item 8 about ZPP), should meet certain requirements to its maintenance and ways of granting, which

Are defined by laws, other legal acts and usually established in

To retail trade in rules, such, as: necessity, достоверность1,

2

Presentation, availability, information granting in Russian, etc.

In item 2 of item 10 of the Law about ZPP (the Information on the goods (works, services)) is said, that: "the Information on the goods (works, services) without fail should contain:... The address (location), the company name (name) of the manufacturer (the executor, the seller, the authorised organisation or the authorised individual businessman, the importer). As is known, in Russian double interpretation of the conclusion of a part of the text in brackets is supposed: as"or"or as"also"In this connection the author of dissertation offers in order to avoid ambiguous interpretation of the specified position by vessels, to state considered paragraph 8 of item 2 of item 10 of the Law about ZPP in the following edition: the address (location), the company name (name) of the manufacturer, the executor, the seller, and also the authorised organisation or the authorised individual businessman, the importer.

Standard requirements to the information on the realised goods contain both in standard legal acts, and in normativnotehnicheskih documents (documents on technical regulation, such as the National standard of the Russian Federation of GOST P 51074-2003 "Products food. The information for the consumer. The general requirements" (utv. The decision of Gosstandart of the Russian Federation from December, 29th, 2003 N 401-st) [313 [314] [315].

So, precontractual relations always develop during procedure of the conclusion of any contract. Feature of making contract of retail purchase and sale is that the legislator would regulate an imperative order procedure of the offer regarding information granting.

The analysis of features of making contract of retail purchase and sale carried out by the author of dissertation allows to draw a conclusion that the major stages of process of the conclusion of the given contract are regulated by mandatory provisions of the civil legislation,

Providing withdrawals from a principle of freedom of the contract, main principle of the conventional law (item 421 GK the Russian Federation). The legislator, regulating the contract of adhesion and the public contract, establishes withdrawals from all three elements of a principle of freedom of the contract:

- Making contract freedom;

- Freedom of choice of the concluded contract;

- Freedom of definition of the maintenance of the contract.

The mandatory provisions regulating process of making contract of retail purchase and sale, are in certain interrelation. So, in that case when the seller concludes the contract of retail purchase and sale with the buyer of a pas the conditions adjusted with it which are distinct from that contain in standard forms or data cards, there is an infringement of the norms regulating the conclusion of the public contract.

Owing to that concerning the contract of retail purchase and sale the legislator provides considerable restriction of a principle of freedom of the contract, in particular, the contract of retail purchase and sale is the contract of adhesion and the public contract, imperativeness of its conditions has special character. So, proceeding their sense of item 422 GK the Russian Federation, an imperative condition is a condition established by the rule of law and which change under the agreement of parties is not admissible. At making contract of retail purchase and sale any condition cannot be changed under the agreement of parties (an exception conditions about quantity and the goods name constitute, in certain cases also possibility of a choice of the form and a way of payment of the goods is given to the buyer). The buyer cannot participate in an establishment of treaty provisions owing to that the given contract is the contract of adhesion (the item 428 GK the Russian Federation), and accordingly all conditions (except for specified) will be imperative for the given party of the contract of retail purchase and sale.

Treaty provisions of retail purchase and sale for the seller can have absolutely imperative character, for example, in a case with a condition about quality of the goods if the law or in the order established by it provides obligatory requirements to quality of the sold goods or in a case with regulated by the state, the prices established by the state, and rather imperative character. In the latter case, the seller, on the one hand, has no right to change a condition of each concrete agreement, the contract of retail purchase and sale, and force of item 426 GK the Russian Federation regulating the public contract, on the other hand, can change at own discretion only treaty provisions of retail purchase and sale concerning an uncertain circle of persons.

The carried out analysis of legislatively fixed treaty provisions of retail purchase and sale [316] allows to allocate not only traditional imperative and optional treaty provisions, but also such kind of conditions as is imperative-dispozitivnyj, in which relation more preferential mode, in comparison with the established legislator can be provided only. Basically is imperative-optional treaty provisions of retail purchase and sale are provided in a case when on the party of the buyer the citizen acts - the consumer and their presence in the legislation on retail purchase and sale is caused by positions of item 400 GK the Russian Federation (Restriction of the size of responsibility under obligations) and Law item 16 about ZPP (Invalidity of the treaty provisions striking the rights of the consumer). Norms of specified articles provide, that treaty provisions (including about restriction of responsibility of the seller), the striking rights of the consumer in comparison with the rules established by the legislation in the field of protection of the rights of consumers, admit void.

In this connection, the majority of the norms fixing the treaty provisions of retail purchase and sale in an optional order, in a case when the buyer is the citizen, provide only possibility of their change by the seller in favour of the consumer, i.e. in the contract it conditions can be provided only more favourable, in comparison with legislatively established.

So, the carried out analysis of treaty provisions of the retail purchase and sale fixed by the legislator, allows to classify imperative conditions of the specified contract on following bases:

- On an orientation of imperativeness of conditions on subjects of the contract: the buyer and its counterpart:

- On the subject, their establishing: legislatively established imperative conditions and established by the counterpart of the buyer under the contract;

- On degree of participation of the party of the contract in an establishment of its conditions: absolutely imperative and it is imperative-dispozitivnye (in which relation more preferential mode, in comparison with the established legislator) can be provided only.

The practical importance of the given classification consists that limits of independence of the parties of the contract of retail purchase and sale in an establishment of its conditions are defined.

The analysis of treaty provisions of retail purchase and sale carried out by the author of dissertation also allows to draw a conclusion on a various parity imperative, optional and is imperative-dispozitiviyh conditions of the investigated contract depending on the one who acts on the party of the buyer [317]. In that case when the buyer is the citizen, the majority of treaty provisions of retail purchase and sale carry imperative and is imperative-optional характер1. When on the party of the buyer the legal body (the individual businessman) the majority of the conditions which are imperatively-dispozitivnymi in case of making contract the citizen acts, in this case have optional character. The carried out analysis has allowed the author to draw a conclusion according to which the specified parity of imperative, optional and is imperative-optional treaty provisions of retail purchase and sale is used by the legislator for protection of weakness of the contract, elimination of an available economic inequality [318 [319] [320].

From theory of law it is known, that the legal regulation method is set of ways, receptions, levers of the right to certain sphere of public relations [321]. Traditionally discriminate three ways of legal regulation, influence of the right to public relations: the permission, prohibition and the instruction. The specified ways of a method of legal regulation possess ability to act in various variations, in compliance with character of those relations of the is social-legal environment which require necessary influence. In turn, reception of a method of legal regulation defines an order of a combination, use of the specified three ways of legal regulation (the permission, an interdiction and the instruction). Thus, the parity considered by us imperative, optional and is imperative-dispozitivnyh treaty provisions of retail purchase and sale is reception of a method of the legal regulation, the used legislator for protection of weakness of the contract of retail purchase and sale.

The legal regulation method receives the external expression in rules of law of the regulatory legal act by means of use of receptions of legal technics. As legal technics traditionally understand a set of methods, means, the ways used at development and ordering of legal acts. In a science the legal technics is classified but to the various bases: by kinds of legal acts which are served by the given set of techniques and means; under the maintenance of these receptions and means. Under the maintenance tehnikojuridicheskie means and receptions share on: means and receptions of legal expression of will of the legislator (or will of the subject of the individual certificate) both means and receptions of a verbally-documentary statement of the maintenance of the certificate.

So, on the basis of the spent analysis of parities of treaty provisions of retail purchase and sale depending on the subject acting on the party of the buyer, the author the conclusion, that the considered parity becomes, being reception of a method of the legal regulation, defining an order of a combination of permissions, interdictions and instructions in the concrete rule of law in this case is expressed in is standard issued reception of legal technics with which help the will of the legislator and receives the legal expression in the concrete regulatory legal act. Thus, in the essence the specified legal categories coincide, corresponding among themselves as external and an inside of one legal phenomenon.

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A source: Horoshavina Hope JUrevna. Legal regulation of contractual relations of retail purchase and sale. The dissertation on competition of a scientific degree of the master of laws. Kazan - 2007. 2007

More on topic 3. The form of the contract of retail purchase and sale. Features of making contract of retail purchase and sale.:

  1. the Chapter II. Elements of the contract of retail purchase and sale. Especial] makings contract of retail purchase and sale.
  2. the Chapter I. The Civil-law doctrine and the legislation on retail purchase and sale. Kinds of the contract of retail purchase and sale,
  3. 1. The parties of the contract of retail purchase and sale.
  4. 1. Researches of the contract of retail purchase and sale in the Russian To jurisprudence.
  5. 2. The maintenance of the contract of retail purchase and sale.
  6. 2. Execution of the international contract. Structure of contractual communications and kinds of the documents which are making out execution of the international contract of purchase and sale
  7. 2. Concept and contract elements (the foreign trade contract) international purchase and sale of the goods
  8. 3* Kinds of the contract of the retail purchase-prodazhi*
  9. 1.2. The Legal protection at purchase and sale breach of contract in the international trade right
  10. 1.3. Protection Legal regulation at purchase and sale breach of contract in the Russian Federation
  11. 1.1. Protection Legal regulation at purchase and sale breach of contract in foreign countries