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2. The maintenance of the contract of retail purchase and sale.

In the encyclopaedic dictionary the maintenance is defined as the defining party whole, its set частей1.

Traditionally in domestic civil law the contract maintenance is considered in three aspects.

First, the maintenance grazhdansko - the legal contract is understood as treaty provisions [188 [189] [190]. Secondly, the contract maintenance is understood as set of the rights and duties of the parties of the contract ' 1, And, thirdly, the contract maintenance is understood as set of its conditions and the rights and duties of its parties [191].

The rights and duties of the parties of the contract of retail purchase and sale in the present work as the author of dissertation are not considered, in connection with a sufficient readiness of the given question in domestic jurisprudence [192].

Treaty provisions of retail purchase and sale.

The question on concept and classification of treaty provisions, despite long-term history of the contract and its scientific research, is and now debatable. So, D, I.Meyer under treaty provisions understood "the most precise, most detailed definitions which in aggregate constitute the contract maintenance" 1.

O.A.Krasavchikov believes, that the treaty provision is "the private

Legal strong-willed expression of concrete interest of the parties to those or others

„2

To components established by means of the contract legal svjati.

According to M.I.Braginsky, contractual conditions are "way of fixing of the mutual rights and duties" [193 [194] [195] [196].

Besides concept of "treaty provision" of the legal literature such terms, as are often used: points, articles, sections of the contract, etc. It is represented, that all of them are used in sense of a synonym of concept of "treaty provision".

In the Soviet and modern scientific literature it is possible to meet set of various classifications of treaty provisions. D.I, Meyer allocated the insignificant conditions, contracts concerning to essence and involving its invalidity, and the conditions which are void, but "not knocking" void, all contract ' 1.

D.Vahnin, depending on character of influence of the legislation on definition of the maintenance of obligations, suggests to divide treaty provisions on juridiko-actual and pravoobrazujushchie. Under juridiko-actual he understands the treaty provisions perceived by the parties from acts, and under pravoobrazujushchimi - the conditions developed by subjects independently [197].

Division of treaty provisions on essential (including a subject and object), necessary (defined was offered to A.D.Koretsky

The law or other juridical acts), usual (including the basis and the contract purpose), casual and подразумеваемые1.

V.I.Kofman results the most detailed classification of contractual conditions, allocating essential (their coordination is necessary for a recognition of the contract for prisoners); imperative (generated for the given contract the mandatory provision of the law and thereof coming under to obligatory inclusion in the contract); usual (what are established by provisional rules); ordered (conditions which should be adjusted by the parties according to the bases containing in the law, but, however, nanoseconds should put a conclusion about contract fulfilment in dependence on, whether the specified instruction is included in it); and casual (what represent agreements on the questions absolutely not not settled by rules of law or adjusted in deviation from

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The general rules containing in provisional rules).

B.I.Putin suggests to allocate two kinds of conditions: straight lines (developed by the parties) and meant (containing in the law, other legal acts and customs of a business turn and contracts not registering in the text, in connection with their compulsion for the parties) [198 [199] [200].

D.N.Safiullin classifies treaty provisions on the general (is standard defined) and individual (original) [201]. O.A.Krasavchikov in the research suggests to allocate conditions essential (having the jural significance, i.e. influencing formation and a being of the legal relation arising from the corresponding contract) and insignificant (all other conditions included in the text of the contract) [202].

Nevertheless, more often in the scientific literature allocate three kinds of conditions of the civil-law contract: essential, usual and casual. We also will adhere to the given point of view in our further research.

According to item 1 of item 432 GK the Russian Federation, occurrence of contractual relations becomes possible at performance of two conditions: achievements by the agreement parties under the essential treaty provisions and giving to the agreement of the certain form if it is required the legal act or is obligatory as a result of will of the parties. In jurisprudence essential conditions are understood as the conditions forming dogovory in whole and their separate types (kinds) in particular, necessary and sufficient that the contract was considered as the prisoner and by that capable to generate the right and duties at it сторон3.

Essential treaty provisions concern:

- Condition about a contract subject;

- Other conditions which are directly specified in the law and other legal acts as essential;

- Conditions which are necessary for contracts of the certain, given kind. The circle of such essential conditions usually follows from the nature of the contract, definition in the law of its subject and the basic duties of the parties;

- Conditions which under the statement of one of the parties admit существенными4 and on them should be reached соглашение5. [203 [204] [205]

Thus, the legislator has given the general formula of essential treaty provisions, and their concrete lists contain in the rules of law regulating separate types of contracts and their kinds.

Usual treaty provisions what do not require the coordination the parties as irrespective of their will these conditions are already provided in corresponding normative acts name and come into effect at the moment of making contract, i.e. automatically. It is supposed, that if the parties have reached agreements to conclude the given contract thereby they have agreed and with those conditions which contain in the legislation on this contract [206]. In case the parties do not wish to conclude the contract on usual conditions, they can include in its maintenance the points cancelling or changing usual conditions, provided by the provisional rule.

Such conditions which change are called as casual or supplement usual conditions. They gets a validity only at their inclusion in the contract maintenance. Difference of casual conditions from the essential consists that their absence attracts a recognition of the given contract the with not prisoner only in the event that the party in interest will prove, that she demanded the coordination of the given conditions.

Essential treaty provisions of retail purchase and sale.

The indisputable essential treaty provision of retail purchase and sale, as well as any other civil-law contract, owing to instructions on it the legislator, its subject is. Research of a subject of the contract of retail purchase and sale will be defensible to begin with consideration of the treatments of a subject of the contract accepted in the civil-law doctrine. Legal definition of considered concept of the legislation is absent, that has generated a number of different interpretations in understanding of a subject of the contract both in jurisprudence, and in pravoprimenitelnoj to practice.

According to D.I. іМейера, a contract subject always is the right on another's действие1.

O.S.Ioffe, being engaged in research of the given question, believed, that the subject (object) of purchase and sale "inevitably should be embodied not in one, and in two material, legal and strong-willed objects". As material objects of the contract of purchase of O.S.Ioffe understood sold property and a sum of money paid for it; under legal objects - actions of the parties on assignation and payment of money; under strong-willed objects - individual will of the seller and the buyer in limits in what she is subordinated to the legislation regulating their relation.

According to V.V. Vitrjapsky, a contract subject, to be exact, the subject of the obligation following from the contract, represents actions (or inactivity), which should make (or from which fulfilment should refrain) a bound party. So, a subject of the contract of purchase, in its opinion, actions of the seller on transfer of the goods to the property of the buyer and, accordingly, actions of the buyer on acceptance total the goods and payment for it of the established price [207 [208] [209] are.

Under the statement of some authors, the subject of the contract of purchase covers directly the goods (its name and quantity) and the corresponding actions of the parties following from the contract [210 [211].

Other scientists-jurists insist that the contract subject is only material объект3 in which occasion develops civil правоотношение1. In the present research the subject of the contract of retail purchase and sale is considered by the author only in narrow value, i.e. as the goods. According to p, 1 item 454 GK the Russian Federation under the contract of purchase the seller undertakes to transfer to the possession of the buyer a thing (goods), and the buyer undertakes to accept these goods and to pay for it a certain sum of money (price). Thus the goods, according to item 129 item, 455 GK the Russian Federations, can be any things which have been not withdrawn from the civil circulation. Thus, the legislator

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Uses categories "goods" and "thing" as synonyms.

The subject of the contract of retail purchase and sale possesses certain specificity, in comparison with other contracts of purchase. So, according to item 492 GK the Russian Federation, the seller undertakes to transfer to the buyer "the goods intended for personal, family, house or other

Use which have been not connected with enterprise activity ".

Thus, a subject of the contract of retail purchase and sale

It is characterised not by instructions of its features, and through definition of the purposes of its use [212]. For this reason the majority of the goods can act as a subject as deliveries, and retail purchase and sale [213]. Nevertheless, the subject of last nevertheless is already, as a contract subject

Retail purchase and sale there can not be thing which owing to the consumer properties are used only in the enterprise purposes [214 [215]. For example, the goods of industrial appointment cannot be a subject of the contract of retail purchase and sale as they are intended for sale to legal bodies and individual businessmen for the purpose of their use in economic activities. The process equipment, the stroitelyju-road technics, transport cars of common use concern the goods of industrial appointment according to GOST P 51303-99, etc., for example,

The things sold under the contract of retail purchase and sale, can be defined as generic characteristics: number, a measure, in weight, well the specific. Any thing which has been not withdrawn from the civil circulation can be a subject of the contract of retail purchase and sale. However sale of some things is supposed only at observance of the special conditions specified in corresponding normative acts. Such subjects concern the weapon, poisonous substances, etc. Reasons of a public order and safety have caused of restriction of transactions with these subjects.

Because norms GK the Russian Federation suppose sale of the future things, under the contract of retail purchase and sale both existing, and the future things if other does not follow from character of the goods also can be on sale. However it is necessary to recognise, that last case is atypical for the contract of retail purchase and sale since their majority consists and executed practically simultaneously (rupture in time between delivery of the cash-memo and payment and goods reception, as a rule, is insignificant) 3.

Also the legislator does not exclude purchase and sale possibility, including retail purchase and sale, such things, as securities. So, according to item 2 of item 454 GK the Russian Federations, to k-k-sale of securities are applied general provisions gl. 30 Codes if the law does not establish special rules of their purchase and sale. Thus, in the form of the contract of retail purchase and sale also it is supposed purchase and sale of securities (actions, bonds, etc.), but a contract subject will be in this case not the property rights embodied in these papers, and securities as things of a special sort.

Money concerns number of things also, therefore иностраіпіая the currency also can be a subject of the contract of the retail purchase-prodazhi1.

The name and quantity of the goods as necessary characteristics of the contract of retail purchase and sale.

According to item 3 general provision st, 455 GK the Russian Federation, for a recognition of the contract of purchase and sale by the prisoner, from the parties is required to adjust and provide in the contract a condition about quantity and the name of the goods.

The name should identify completely the goods, the subject name should be exact and the most common, not supposing thus substitution. Also, the subject should be allocated by certain characteristics and discriminating signs. In a trade turnover, the name and a digital code of the goods are specified according to the All-Russian qualifier of production OK 005-93, the approved decision of Gosstandart of the Russian Federation from December, 30th, 1993 № 301.

The quantity of the goods is defined in corresponding units of measure or in money terms. The choice of a unit of measure depends both on character of the goods, and from the developed practice of trade by these goods. At definition of quantity of the goods non-standard units of measure can be used: a bag, a pack, a box, a large bottle, etc. [216 [217] [218] [219] Definition of quantity of the goods in money terms basically is applicable when as a subject of the contract of purchase from the seller securities in their monetary calculation or the bank notes which are not used as payment means (a collecting, etc.) 1 act.

In case of treaty provision infringement about quantity, in particular, transfers to the buyer of smaller quantity of the goods, than it is provided by the contract, the buyer should have the right if other is not defined by the contract, to refuse the transferred goods and their payment and if they are paid, to demand the refund and the indemnification.

Absence of the name and quantity or order of definition of the last attracts a recognition of the contract with not prisoner.

Completeness, the complete set, assortment, quality and packing as goods characteristics under the contract of retail purchase and sale.

The given characteristics of the goods of nanosecond are among compulsory conditions of the contract of retail purchase and sale.

In GK the Russian Federation is accurately formulated a difference between "completeness of the goods" (item 478 GK the Russian Federation) and "the complete set of the goods" (item 479 GK the Russian Federation). As completeness of the goods understand set of details, the knots, separate parts constituting the goods (completing products) which form together a single whole used on a general purpose. In the given unity one part named the basic product on which base it is formed is usually allocated the device (is created). Other parts constituting it are considered as completing products [220 [221]. The Treaty provision about completeness of the goods assumes, that the goods are a difficult thing. Technically difficult devices concern number of such goods, such as vehicles, home appliances, etc. [222] Recognition of the product transferred with basic veshchyo, an accessory has the important legal effect as according to item 471 GK the warranty period for a completing product is considered the Russian Federation equal

To warranty period for the basic product if other is not provided договором1.

According to st + 497 GK the Russian Federation, completeness of a difficult thing is defined or the agreement of the parties by transfer in the contract of completing products, or instructions of the standard document on

Standardization, or by a combination of these ways, i.e. not only instructions of the standard document on standardization, but also the change by the parties of the list of completing products defined by the standard document. If any of these ways of an establishment of completeness of a difficult product is not used, the seller should be guided by business customs or usually shown to completeness of the goods requirements.

As to the goods complete set it is necessary to understand the set of the separate goods which have been not caused adjusted by the parties as it

Unity of their application. The goods included in the complete set can

To be used independently, separately from other goods. A rule about calculation of a warranty period, its duration on each of

The completing products, established by item Z item 471 GK the Russian Federation for a difficult product (the core and accessories), it is inapplicable to the complete set of the goods.

Guarantees of the right of the citizen-buyer on a free choice of the goods under the contract of retail purchase and sale are statutory about ZPP. So, item 2 of item 14 of the Law about ZPP is established will lock to cause acquisition of one goods by obligatory acquisition of other goods. C the account of these norms the seller has not the right to impose to the buyer the goods unnecessary it by their inclusion in the complete set. The goods included in the complete set, can be transferred the buyer simultaneously or are transferred is isolated. In this case the moment of execution by the seller of the given treaty provision the moment of transfer of last of the goods included in the complete set [223 [224] [225] admits.

The assortment represents a parity of the transferred goods by kinds, models, the sizes, colours, grades or other signs. The assortment includes two components interconnected among themselves. First, the list of things of a certain kind, the size, colour, model and other their possible indicators entering into assortment. And, secondly, a quantitative parity of the given things (goods).

Each such thing in its qualitative display can be used independently, irrespective of others prophetic assortimentnoj groups of the goods. The legislator fixes a priority of the seller in definition of assortment of the goods if it is not defined in the contract of purchase and the order does not follow from the contract era establishments. In these cases the seller has the right or to transfer to the buyer the goods in assortment, proceeding from its requirements which were known to the seller at the moment of making contract, or to refuse execution договора1.

On concept "quality of the goods" in our research we will stop

More in detail because it is one of central in sphere

- 2 retail buy i-sales.

We can find following definitions of quality in explanatory dictionaries:

"This property or an accessory, everything, that constitutes essence of the person or 1

Things "," set of properties (including a utility measure) production, [226 [227] [228]

Causing its ability to satisfy certain public and personal needs "[229].

In the legal literature it is possible to meet the various legal

Definitions of quality of the goods. So, M.J.Chelyshev suggests to define

Category "quality of the goods"as"set fixed in

The legislation, in the documents accepted according to the legislation,

In particular in documents on technical regulation, the contract,

The generated customs of requirements to the goods, first, the allowing

To distinguish the given goods from others similar, as by means of the such

Requirements those or other essential properties of the goods are fixed, and in -

The second which execution does the goods useful to the consumer,

2

Capable to be used on the established special-purpose designation ".

A.M.Erdelevsky defines quality of the goods as set of the characteristics, capable to satisfy requirement of the person in

To certain sphere of its ability to live [230 [231] [232].

A.F.Giljazov suggests to understand as quality of the goods set of its properties and the characteristics, corresponding to the contract, specifications or technical regulations [233 [234].

Thus, authors do not spend distinction between concepts "quality of the goods" and "appropriate quality of the goods". Because quality of the goods can be both ought, and inadequate, it is necessary to understand as quality of the goods only set of its properties and characteristics. Concerning the contract of retail purchase and sale it is offered to understand such set of properties and characteristics of the goods which corresponds or to obligatory requirements, statutory or in the order established by it as appropriate quality, or to the purposes for which the goods such are usually used, or to the purposes of which the seller has been advised by the buyer at making contract, or to the sample (description) at goods sale on the sample or under the description.

The category of appropriate quality of the goods as subject of the contract of retail purchase and sale is subjective, and owing to it in each concrete situation and each separate buyer appropriate quality of the goods will be understood as absolutely various conditions of the same goods.

GK the Russian Federation and the Law about ZPP I provide '! ', that the seller is obliged to transfer to the buyer the goods which quality corresponds to the contract (item 1 of item 469 GK the Russian Federation, item 1 of item 4 of the Law about ZPP). As the contract of retail purchase and sale is the contract of adhesion, the buyer does not participate in definition of treaty provisions about quality of the goods, and accepts what are declared by the seller, and in this case they become contractual. For the buyer the given conditions about quality of the goods can be specified in characteristics sheet in the goods or rules of its use where the basic consumer indicators of quality and standard documents on the standardization to which requirements there should correspond the goods are specified; on a label or a label attached to the goods where are specified the document on standardization, the article, a style, colouring, the size, leaving rules, etc.; On the goods or its packing where are specified the standard document on standardization, manufacturing date, working life, instructions for use or snores, etc. Treaty provisions about quality can be lead up to the buyer and other ways established by the legislation or accepted in trade

At absence in the contract of conditions on quality of the goods the seller is obliged to transfer to the buyer the goods, suitable for the purposes for which the goods such are usually used (item 2 of item 469 GK the Russian Federation, item 2 of item 4 of the Law about ZPP). Unsuitable for usual use it is considered the goods if it does not have certain qualities and it interferes with its actual 1 use, leads to negative result, or increases expenses or costs of the consumer [235 1.

In case the goods are suitable not for all purposes for which it is usually used, but only for some of them, the seller should warn about it the buyer, otherwise execution is considered inadequate. But also in this case requirements to quality of the goods are not settled by such functional suitability as, for example, these goods should correspond to safety requirements in any case.

In and. 2 items 469 GK the Russian Federation, item 3 of item 4 of the Law about ZPP are provided also a case when the buyer does not know to what particularly goods to it are necessary, but accurately imagines the purpose for which it is intended it to use. It occurs, for example, when special knowledge which are not present at the buyer are necessary for goods choice. That is it is legislatively established, that the seller under the contract of retail purchase and sale should possess to the full data on properties of the goods sold by it. In this case the seller bears responsibility for sale to the buyer of such goods who will be suitable for use in specified by it целях2.

According to item 2 of item 469 GK Law item 4 about ZPP the buyer should inform the Russian Federation, item Z on a specific goal of acquisition of the goods before making contract. Therefore, if it becomes known to the seller after making contract, transfer to the buyer of the goods mismatching this purpose, should admit appropriate execution of the obligation.

In practice widespread retail purchase and sale on samples or the description. The sample is a product, consumer which (operational) characteristics define requirements to quality of the transferred goods. The goods description is a list of consumer characteristics which the goods [236] should possess. At goods sale on the sample or under the description, the seller is obliged to transfer to the buyer the goods which corresponds to it. In this case, samples and descriptions of the goods play a role of original treaty provisions about quality of the goods, and the seller bears responsibility for conformity of goods really given to the buyer to the sample or the description.

Besides the specified legal ways of definition of quality of the goods, in retail trade such way of quality check of the goods, as its preselling preparation is often applied. It represents set of the operations spent both at presence, and without the buyer, two purposes directed on achievement - giving to the goods of an appropriate trade dress and its check качества2.

Under the agreement between the seller and the buyer the goods can be transferred, I correspond a Russian cabbage soup j to increased requirements to quality in comparison with the obligatory requirements established in a statutory order (paragraph 2 of item 4 of item 469 GK the Russian Federation). The legislator excludes in the contract only lower requirements to quality in comparison with the established obligatory requirements.

In sphere of protection of the rights of consumers under the contract of retail purchase and sale concept "quality of the goods" is closely connected with concept "safety of the goods". In an explanatory dictionary In, Dalja "safety" is defined as absence of danger, safety, reliability ' 1.

According to the Law about ZPP the consumer has the right to that the goods under usual conditions of its use, storages, transportations and recyclings were safe for a life, health of the consumer, environment, and also did not harm consumer property.

Thus, safety of the goods is the such condition of the goods allowing in usual conditions its use, storage, transportation and recycling at which there is no risk of drawing of harm of a life, to health and consumer property, and also environment.

Requirements which should provide safety of the goods for a life and health of the consumer, environment, and also prevention of property tort of the consumer, are obligatory and are established by the law or in the order established by it. In GK the Russian Federation is absent definition both the safety, and any criteria of its definition. This question is carried by the legislator to special laws about safety, such, as: the Federal act from January, 2nd, 2000 № 29-FZ "About quality and safety of foodstuff", the Federal act from March, 30th, 1999 № 52-FZ (from amendment and dop.) "About sanitary-and-epidemiologic well-being of the population" [237], etc.

In the legislation on retail purchase and sale concept "inadequate quality" is not defined. Proceeding from legislative definition of a lack of the goods, under inadequate quality of the goods it is possible to understand such set of properties and characteristics of the goods which mismatches or to obligatory requirements, statutory or in the order established by it, or to the purposes for which the goods such are usually used, or to the purposes of which the seller has been advised by the consumer at making contract, or to the sample (description) at goods sale on the sample or under the description. Thus, inadequate quality of the goods means, that requirements to appropriate quality of the goods are not observed in full or in part.

Besides requirements to the goods which are a subject of the contract of retail purchase and sale, by the law or the contract special requirements to its container or упаковке1 can be established. Casing and packing are applied to maintenance of safety of the goods or convenience of its moving by the buyer. Transfer of the goods without container or packing or in inadequate container or packing on the legal effects is equated by the legislator to the consequences caused by transfer to the buyer of the goods of inadequate quality [238 [239].

The price as the essential treaty provision of retail purchase and sale.

In spite of the fact that the price category is widely used in various spheres of legal regulation, its uniform definition in the federal legislation is absent.

D to jurisprudence usually the price is understood as term of money of cost of the goods, works, services [240]. Owing to express indication of the legislator, the price is the essential treaty provision of retail purchase and sale. So, in item 1 of item 500 GK the Russian Federation is said that "the buyer is obliged to pay the goods on tsepe, declared by the seller at the moment of making contract of retail purchase and sale".

The price category is closely connected with quality of the goods. So, according to a rule containing in item 475 GK the Russian Federation, the buyer to whom the goods of inadequate quality are transferred, has the right to demand from the seller, including, proportional reduction of a purchase price. The similar norm (item 480 GK the Russian Federation) is devoted consequences of transfer of the incomplete goods.

Because the contract of retail purchase and sale is the public contract, the condition about the goods price should be identical to all buyers. The treaty provision of retail purchase and sale about the price is essential in this connection its recognition insignificant (item 5 of item 426 GK the Russian Federation), attracts invalidity of all transaction (item 180 GK the Russian Federation). Hence, the buyer to whom the goods are sold on higher tsepe, than another, has the right to demand a contract recognition void (insignificant) and restoration of the parties in initial position. If the bought goods are already consumed, the bilateral restitution will mean compensation to the buyer of a difference between the price paid to it and the least price on which the given seller sold goods to other buyers [241].

In an exception of this rule by the legislation for separate categories of consumers privileges can be established. For example, the Decree of the President of the Russian Federation from May, 5th, 1992 N 431 "About measures on social support of large families" provides free delivery of the medicines got under recipes of doctors, for children is elderly till 6 years; a free food (breakfasts and dinners) for pupils of general educational and professional educational institutions, etc.

The goods price is established, under the general rule, the seller under the contract of retail purchase and sale. Depending on degree of independence of the seller in an establishment of the price for the goods, it is possible to discriminate: free prices; the prices regulated by the state; the prices established by the state. Concerning free prices the right regulates only system of the relations developing in the course of their formation. Regulated tsepy usually are defined by the state by an establishment of a marginal level of the price. In a case with tsepami, established by the state (fixed), legal regulation consists in a direct, imperative establishment of the sizes (levels) tsep in the form of corresponding legal предписаний1. The established prices, as a rule, are defined by the state in a firm sum of money.

The order of state regulation of the prices is defined in the governmental order of the Russian Federation from March, 7th, 1995 N 239 "About measures on streamlining of state regulation of the prices (tariffs)" [242 [243]. The Same certificate approves inventories and services on which the prices [244] are established. The concrete prices for the goods, which list it is approved by the specified governmental order, are established by various federal enforcement authorities. So, the Letter of Ministry of Economics of the Russian Federation from February, 3rd, 2000 № ИМ-155/7-113 had been defined floor prices for vodka,

likerovodochnuju and other alcoholic production a fortress over 28 percent, made in territory of the Russian Federation or imported on the customs territory of the Russian Federation [245].

The positions containing in considered normative acts of enforcement authorities, are obligatory for the seller at an establishment of the price of the goods in the contract of retail purchase and sale and thus the seller has not the right to declare lower (or higher) the price for the given goods. The treaty provisions breaking established or controlled prices, are void also payment of the goods accepted by the buyer is carried out under the prices established or regulated by the state bodies as about established or controlled prices imperative character is given rules and treaty provisions about the prices should them correspond.

According to item 317 GK the Russian Federation, item 2 of item 10 of the Law about ЗПП1 the price should be expressed in roubles. However item 2 of item 317 GK the Russian Federation, considering a high rate of inflation in the Russian Federation in the conditions of transition to the market, supposes price definition in the size equivalent to the determinate sum in a foreign currency or in conditional monetary units (ekju, "the special rights of loan", etc.). Thus payment is made in roubles for what the due sum of roubles under the general rule is defined on an official rate of corresponding currency or conditional monetary units on the maturity day [246 [247] [248].

Cash and clearing settlements under the contract of the retail purchase -

Sales.

Payments in the Russian Federation are carried out by cash and clearing settlements. Usually in the legal literature calculation is defined as the action directed on repayment of the liability by payment,

z

I.e. execution, In the same value uses concept "calculations" and of item 861 GK the Russian Federation: "Calculations with participation of the citizens, not connected with realisation of enterprise activity by them, can be made by cash without restriction of the sum or in a non-cash order...".

Concept definition "cash monetary calculations" is given in item 1 of the Federal act from May, 22nd, 2003 N 54-FZ "About application kontrolnokassovoj technicians at realisation of cash monetary calculations and (or) calculations with use of payment cards" [249 [250] [251] [252]. According to this definition cash monetary calculations are made with use of means of cash payment calculations for the got goods, the performed works, the rendered services. Means of cash payment are real bank notes: banknotes (bank notes) and coins which are transferred by one subject to another for the goods, works, services. Calculations by cash are made between the payer and the addressee without participation of the credit organisation.

In the civil legislation operations are carried to clearing settlements on transfer of money resources on corresponding bank счетам1 only. Thus, as the basic sign of settlement relations in special value participation in such calculations of banks or other credit organisations is allocated.

Interesting within the limits of our research L.A.Novoselovoj's point of view which with a position of the legislator does not agree is represented and believes, that the basic criterion of allocation of settlement relations in a special kind of legal relations is the specific object of made transactions in which quality the property in the form of the incorporeal right to the bank [253 [254] capable by the nature to carry out a role of an instrument of payment acts, instead of participation of bank [255 [256] [257] [258] [259] [260] [261] [262] [263].

Forms of calculations between the payer and the addressee are defined by the contract. GK the Russian Federation in item 862 establishes the most widespread forms of the clearing settlements, not exhaustive which list includes: calculations by payment commissions, under the letter of credit, checks, calculations under the collection, etc. It is authorised to apply any other forms of clearing settlements if they are statutory and the bank rules established according to them or correspond to customs of a business turn applied in bank practice (item 1 of item 862 GK the Russian Federation) 1.

Concerning the contract of retail purchase and sale, depending on the one who acts on the party of the buyer, legal or the physical person, operates or Position of the Central Bank of Russia from October, 3rd, 2002 N 2-П "About clearing settlements in the Russian Federation ’ 1" * or Position of the Central Bank of Russia from April, 1st, 2003 N 222-P ltO a procedure of clearing settlements physical persons in the Russian Federation "[264 [265] [266]. From this it is possible to draw a conclusion according to which legal regulation of the clearing settlements which are carried out under the contract of retail purchase and sale, differs depending on the one who acts on the party of the buyer under the contract - legal or the physical person.

Payment card as the form of clearing settlements under the contract of retail purchase and sale.

In spite of the fact that the buyer under the contract of retail purchase and sale hypothetically can practically use any form non-cash расчетов* a pas to practice of the most widespread nevertheless is payment on a payment card [267]. Other forms of clearing settlements if are used under the contract of the retail purchase-prodazhi* that, is faster, by way of exception, as clearing settlements on a payment card are the most convenient in sphere of retail purchase and sale, both for the seller, and for the buyer.

Now calculations with use of payment cards are regulated basically by Position of the Central Bank of Russia from December, 24th, 2004 N 266-P "About issue of bank cards and about the operations made with use of payment cards" 1. The legislator, using various concepts, such as "a payment card", "bank card", unfortunately, anywhere does not give them definition. So, in HK the Russian Federation [268 [269] it is possible to meet such various concepts, as "bank card" (item 145), "a payment card" (item 290), "plastic card" (item 290), "credit card" (item 212). In the listed concepts the legislator wrongly puts the same sense.

At the same time the specified Position of the Central Bank of Russia shows concepts of a settlement card, a credit card, the prepaid card which are versions of a payment card. But legal definition neither the most payment card, nor a bank card in the legislation pet [270].

Payment cards have set of versions. They are classified by payment possibilities (credit and debit (settlement)), on their persons getting (personal and corporate), on technical characteristics (magnetic and chipovye) and so forth [271] Also, it is necessary to notice, that last years, in connection with fast development of retail purchase and sale through the Internet, [272] there are the new ways of clearing settlements called by network calculations (calculations in a network the Internet). So, along with traditional ways of non-cash payment "telephone money" 1 began to be applied so-called. In this case, the buyer agrees on inclusion of a payment for the goods necessary for it in the account, exposed to it for using the Internet as a whole. There was also absolutely new concept - "electronic cash" (or "ecash") which represent the conditional units of account equivalent to quantity of "real" money on the account ' of the user in protsessingovoj of the company, carrying out calculations on сделке2.

Term of payment of the goods.

As a rule, the moment of payment of the goods is predetermined by essence of the contractual obligation and way of payment of the goods, selected the parties.

According to GK the Russian Federation goods payment does not depend on term and the fact of its transfer. The goods can be paid the buyer simultaneously with transfer, to it or after transfer. Payment term is defined or the agreement of the parties, or follows from features of execution of a concrete kind of the contract.

The buyer pays the goods for the contract of retail purchase and sale, as a rule, at the moment of execution of a contract which practically coincides with the moment of its conclusion, i.e. is simultaneously carried out both transfer, and goods payment.

Thus, under the general rule, a duty of the buyer to pay the goods arises from the moment of goods transfer. From this rule GK the Russian Federation provides a number of exceptions, defining, that payment can be made in the term defined by the contract - before goods transfer, or after certain time after. So, according to item of I item 487 the contract of purchase the duty of the buyer can be provided to pay the goods in full or in part before transfer by the seller of the goods (advance payment). Also, the contract of purchase goods payment through [273 [274] certain time after its transfer to the buyer (goods sale on credit, including with payment by instalments (the item of item 48 S, 489 GK the Russian Federation) can be provided.

The goods advance payment.

In certain cases, the seller under the contract of retail purchase and sale can include in the contract a condition about the goods advance payment. The advance payment, as a rule, is carried out by the buyer the payment commission, cash means or by means of a payment card. The goods advance payment meets in contracts on sale of the goods which will be created in the future more often.

In the event that the seller who has received the advance payment of the goods, does not fulfil on transfer of the goods to the term specified in the contract, or if term is not specified in the contract, in reasonable term after obligation occurrence, or in seven-day term from the date of a presentation the creditor of the requirement about its execution if the execution duty in other term does not follow from the law, other legal acts, conditions of the obligation, customs of a business turn or obligation being (item 314 item, 457 GK the Russian Federation), the buyer transfer of the paid goods or return of the sum of the advance payment for not transferred goods (item 3 of item 487 GK the Russian Federation) have the right to demand the duty.

Other consequence of default or untimely performance by the seller of a duty on timely transfer of the paid goods, is occurrence at the buyer of the right to demand payment of percent according to item 395 GK РФ1. While the buyer has not refused goods reception in connection with delay of its transfer and has not demanded the payment return, made the seller responsible can be considered as the penalty for goods delay in delivery, C the moment when the buyer has refused acceptance of the goods and has demanded to return preliminary [275 [276] paid sum, the seller has a liability at which default it pays percent on the basis of item 395 GK the Russian Federation.

Responsibility of the seller for delay in delivery of the paid goods comes from that day which is certain by the contract as term of transfer of the goods, and exists about day of transfer of the goods or a presentation the buyer of the requirement to return payment in connection with delay in delivery. C the moment of a presentation the buyer of the requirement to return payment the seller is responsible for delay in performance of the liability and pays percent on the basis of item 395 GK the Russian Federation about day of return to the buyer of preliminary paid sum.

The contract of retail purchase and sale the duty of the seller can be provided to pay percent for the sum of the advance payment from the date of reception of this sum from the buyer. At absence in the contract of such condition percent for using the given commercial credit are not charged [277].

Not entering by the buyer of the advance payment for the goods in time, established by the contract, and if it it is not defined, in reasonable term, (item 314 GK the Russian Federation), is considered refusal of the buyer of execution of a contract. In this case to the contract of retail purchase and sale are not applied item 328 GK the Russian Federation about default of counter obligations as it is provided item 2 of item 487 GK the Russian Federation for other kinds of the contract of purchase corrected. Thus, the seller under the contract of retail purchase and sale of nanosecond has the right to demand from the buyer who has not brought the advance payment for the goods in certain term, the indemnification.

Payment of the goods sold account and with payment by instalments.

Now, the contract of retail purchase and sale is on credit regulated only by norms GK РФ2.

At goods sale on credit, the duty on realisation of payment of the goods arises at the buyer through certain time after transfer by its seller. Such order of payment should be provided the contract of retail purchase and sale, In a case if the parties do not reserve possibility of payment of the goods the buyer with payment by instalments the goods sold account, are paid by unitary payment. In the goods contract of purchase on credit with payment by instalments additional essential conditions are provided. Conditions concern them about an order, the size and times of payment. At absence in the contract at least one of the named conditions the contract is nullified (item 168 GK the Russian Federation).

Goods sale on credit also is a kind of commercial crediting at which the seller gives to the buyer a time in payment of the goods received by it [278].

As to term of such payment it is defined according to st, 314 GK the Russian Federation. Thus, if other is not provided by the purchase and sale contract, the minimum duration of reasonable term about which it is spoken in the item 2ст, 314 GK the Russian Federation, cannot be less than 30 days, as in conformity sp. The Russian Federation at absence in the contract of term of return of a loan it is considered I item 810 GK to equal 30 days from the date of a presentation of the corresponding requirement. Thus, reasonable term of payment of the goods sold account, probably, cannot be less than 30 days.

The duty of the buyer on payment of the goods sold account, in relation to a duty of the seller on transfer of the goods to the buyer, has counter and dependent character. At default by the seller of the specified duty, the buyer has the right to suspend execution of the obligation or to refuse execution of this obligation and to demand the indemnification (st, 32S GK the Russian Federation). Thus, the seller, in case of delay or obligation default on transfer of the goods to the buyer, pays percent, also as well as in case of the advance payment, on the basis of item 395 GK the Russian Federation.

At default by the buyer of a duty on payment of the goods sold account, in time, by the established contract, the seller has the right to demand payment of the transferred goods or return of the unpaid goods [279]. As to consequences of default the buyer of a duty on goods payment by instalments, in this case to the seller if other is not reserved by the contract, gives the right to refuse execution of a contract and return of the sold goods. Realisation of the specified right becomes impossible when the sum of the payments received from the buyer, will exceed half of price of the contract.

The neopayment, incomplete, untimely payment by the buyer of the goods sold to it account (including with a condition of payment by the buyer of the goods by instalments) does not attract its duty to pay to the seller percent for illegal using another's money resources under item 395 GK as the ego is provided by the general rule of item 4 of item 488 GK.

Thus, the contract of retail purchase and sale cannot provide payment of interests on arrears of repayment by the buyer of the credit (instalment entering at payment by instalments) for the goods. It also follows from item 811 GK the Russian Federation in which it is said, that in cases, statutory, from the borrower who is not returning in time the sum of a loan, percent on the loan for consumption, but not the percent provided by item 395 GK the Russian Federation can be collected only,

The property right to the goods sold under the contract of retail purchase and sale on credit, according to item 488 GK passes the Russian Federation to the buyer. Therefore for the purpose of maintenance of interests of the seller the legislator establishes in its advantage pledge on the goods sold account, from the moment of transfer of the goods to the buyer and before its payment by the buyer.

To the buyer for the contract of retail purchase and sale is accorded to pay ahead of schedule a right the goods got on credit, including with payment by instalments.

The practice of making contract of retail purchase and sale studied by the author of dissertation on credit (including with payment by instalments) allows to come to conclusion, that such kind of the contract of retail purchase and sale (when the credit under the contract of retail purchase and sale is given to the buyer by directly seller) consists in practice now very seldom [280]. There is a situation when the credit for acquisition of the goods under the contract of retail purchase and sale (the consumer credit) is given to the buyer not by the seller, and bank or other credit organisation "More often. Under the form the contract of consumer crediting can be mixed and to contain elements of different obligations, for example: about the credit, about the bank account, about use of maintenance for execution of obligations, and also other conditions (item 421 GK the Russian Federation).

Practice of the conclusion of contracts of consumer crediting shows, that even more often the trading organisations which are engaged in realisation of the goods at retail, with a view of granting more concessionary terms to buyers, enter into agreements with the credit organisations on which conditions to buyers the interest-free loan is granted, and the bank lists the credit sum (purchase cost) to trading organisation not in full, and with a deduction of the sum of percent for the credit. Thus, the seller pays for granting to the buyer under the contract of retail purchase and sale by the credit organisations of the credit.

In connection with the infringements which have become frequent recently of the rights of the consumers, concerning grantings by it full and a trustworthy information about real conditions and rates of consumer crediting, the Federal antimonopoly service and the Central bank of the Russian Federation is have published joint recommendations about standards of disclosing of the information by granting of such credits [281], directed on maintenance of equal conditions of a competition between the credit organisations and protection of interests of consumers. Later, besides the recommendations, which banks to observe basically have not been obliged, requirements to banks about full disclosing of the information on consumer crediting have legislatively been fixed in the Letter of the Central Bank of Russia from December, 29th, 2006 № 175 "About definition of the effective interest rate under the loans given to physical persons".

Further also acceptance of the separate law on consumer crediting which should make, in particular, concept definition the consumer credit and its kinds is planned, and fix protection mechanisms, both the borrower, and the creditor.

Place and the moment of execution of a contract of retail purchase and sale.

Place and the moment of discharge of duty of the seller on goods transfer under the contract of retail purchase and sale. Transfer of the goods being a subject of the contract and corresponding to all requirements containing in it - the basic duty of the seller under the contract of retail purchase and sale. According to item 224 GK the Russian Federation, "transfer admits delivery of a thing to the purchaser, and equally delivery to a carrier ' for sending to the purchaser or

Delivery in the organisation of communication for transfer to the purchaser вещей* aloof without the delivery obligation. The thing is considered handed over to the purchaser from the moment of its actual receipt in possession of the purchaser or the person specified to it ".

Transfer of a thing to the buyer can be classified on the various bases:

- First, on a way of transfer of the goods. According to GK the Russian Federation, goods transfer (goods delivery) under the contract of retail purchase and sale, can be carried out:

- By delivery of the goods to a carrier or the organisation of communication for delivery to the buyer;

- By goods delivery in a place specified in the contract;

- By delivery of the goods to the buyer on a residence of the citizen (the location of the legal person) if the place of transfer of the goods is not defined by the contract;

- By goods granting in the order of the buyer in the goods location;

- By delivery by means of the automatic machine;

- By goods delivery to directly buyer.

- Secondly, in a place of transfer of the goods. A place of discharge of duty on goods transfer will be, depending on a kind and treaty provisions of retail purchase and sale:

- The goods location (including in case of sale of the goods with use of automatic machines). As the goods Location (an appropriate place) the location of the seller, a warehouse which is in its conducting, etc., as a rule, serves

- Residence of the citizen (the location of the legal person);

- The place specified in the contract.

In direct dependence on a place of execution of the contractual obligation there is a moment of discharge of duty of the seller on goods transfer.

- Thirdly, on the moment of discharge of duty of the seller on goods transfer. On the given moment of the basis of classification coincide with the classification bases gju to a way of transfer of the goods.

- Fourthly, on the parties participating in transfer of a thing. Transfer the goods to the buyer can:

- The seller;

- The third party (a carrier, the communication organisation).

To accept the transferred goods under the contract of retail purchase and sale can:

- The buyer;

- Any other person who has shown the receipt or other document, testifying to making contract or about registration of delivery of the goods.

C the moment of discharge of duty of the seller to transfer the goods the important legal effects communicate: observance by the seller of the time of performance of duties under the contract and possible adverse for it property consequences at infringement of the given term, transition to the buyer of risk of accidental loss or goods damage, etc. [282]

Place and the moment of execution by the buyer of a duty to pay the goods. The basic duty of the buyer is goods payment under the established price. At cash calculations, and also at payment with use of a payment card, a place of discharge of duty to pay the goods the cash register location, i.e. the location of the seller is.

In item 316 GK the Russian Federation is said, that "... Liability execution should be made in a residence of the creditor at the moment of obligation occurrence and if the creditor is the legal body - in a place of its finding at the moment of obligation occurrence..." From this it is possible to draw a conclusion, that under the general rule at clearing settlements a place of execution of the liability is the account of the seller. So, if calculations are made by the payment commission a payment place will be not the bank of the payer in which there is its account, and bank of the seller as into the account in this bank according to the contract money resources [283] should be enlisted.

According to rules about a place the question on the moment of discharge of duty on goods payment under the contract of retail purchase and sale dares also. Thus, at goods payment by cash money resources, the moment of execution of the specified duty of the buyer the moment of entering of a sum of money in cash desk of the seller In case calculations under the contract of retail purchase and sale are made in the non-cash form will be, the question on the moment of discharge of duty of the buyer on goods payment directly is connected with a place of execution of the given duty.

The moment of discharge of duty of the buyer on payment of the goods by means of a debit payment card will be the moment of write-off from its account of a necessary sum of money (purchase cost). In case payment is made by means of a credit payment card, the moment of discharge of duty on goods payment will be also the moment of write-off from the account of the buyer of a necessary sum of money, but, in case the sum on the account insufficient, also write-offs of the missing sum from the account of bank within the established limit by reception at it the credit [284].

If a place of discharge of duty of the buyer on goods payment the account of the seller also the moment of execution of the given duty the moment of receipt of money resources in this respect will be admits. Therefore it is possible to consider payment finished at the moment of transfer of money resources on the settlement account of the addressee of these means.

According to a rule containing in item 2 of item 45 HK the Russian Federation, the moment from which the duty of the payer on tax payment is considered executed, the moment of a presentation it in commission bank on payment of the corresponding tax in the presence of the sufficient monetary rest on its account is, and at payment of taxes by cash money resources - from the moment of entering of a sum of money on account of tax payment in bank or cash desk of local government or the organisation of communication of the federal enforcement authority authorised in the field of communication.

The judiciary practice which has developed before entering of respective alterations in 1998г., the duty on tax payment recognised that it is considered executed only at receipt of corresponding money resources in the budget. The decision of the Constitutional court of the Russian Federation from October, 12th, 1998 "On business about constitutionality of point 3 of article 11 of the Law from December, 27th, 1991" About bases of tax system "position that the duty of the tax bearer stops only from the moment of receipt of the corresponding sums of the budget, has been recognised by mismatching Constitution РФ1.

After eight years the scheme of definition of the moment of discharge of duty on tax payment by cash money resources (item 2 of item 45 HK the Russian Federation) has been borrowed by the legislator and reflected in the Law about ZPP (Law item 37 about ZPP).

The hook, in Law item 37 about ZPP in edition of the Federal act from July, 27th, 2006 № 140-FZ is said, that at use of the cash form of calculations of the obligation of the consumer before the executor on payment of the rendered services (the executed works) are considered executed from the moment of entering of cash money resources into cash desk of the executor, or into the credit organisation, or into cash desk of the commercial organisation which are not the credit organisation and having the right to accept a payment for the rendered services (the performed works).

Thus, on the basis of the spent comparative analysis of tax laws and the consumer legislation regarding specified corresponding sections HK the Russian Federation and the Law about ZPP, the author of dissertation becomes a conclusion that in the field of protection of the rights of consumers the maintenance of corresponding norms of the fiscal law influences the maintenance of the specified norms of civil law concerning definition of the moment of discharge of duty on service payment (result of work) cash money resources.

According to the author of dissertation, the position containing in p, 2 items 45 HK the Russian Federation, concerning moment definitions from which the tax bearer is considered executed a duty on payment of the tax in case of use of the non-cash form of payment, it is necessary to borrow and provide also in the Law about ZPP the consumer right to be considered executed a duty on [285 [286] payment of the goods (work, service) at the moment of write-off of a necessary sum of money from its account, instead of at the moment of their transfer into the account of the seller (uslugodatelja, the manufacturer). In work as the author of dissertation necessity of an establishment for the consumer-citizen of a special legal regime, more preferential in comparison with other subjects of legal relations of the retail purchase and sale, caused by that fact has already been considered, that among other participants of the civil circulation they act as the least protected party, and in obligations with their participation there is the greatest degree of an economic inequality. Thus, necessity of the prediscretion in this case withdrawals from the general rule and an exception of responsibility of the consumer for timeliness of receipt of the sum into the account of the addressee is represented proved.

In present time of the consumer-citizen in case there was a delay somewhere in a chain of movement of money resources, following adverse consequences can wait. For example, in a case, when the contract of retail purchase and sale provides the goods advance payment (item 487 GK the Russian Federation), the neopayment the buyer of the goods in the term established by the contract admits refusal of the buyer of execution of a contract. Thus, the seller can refuse to transfer to the buyer the goods in case he has already listed money from the account, but in connection with a delay of bank they have not arrived yet into the account of the seller.

The same situation and in a case with goods sale, for example, on credit with payment by instalments. Item 488 GK provides the Russian Federation, that in a case when the buyer who has received the goods, does not execute a duty on its payment in the term established by the contract of purchase, the seller has the right to demand, including, and return of the unpaid goods. In case of granting to the consumer of the credit bank, responsibility for delay of return of money resources by the borrower can consist also in collecting of a payment for the payment admission.

In the above-stated purposes, the author of dissertation offers to enter into the Law about ZPP st, 11.1"Order of payment of the goods (the performed work, the rendered service) at use of the non-cash form of calculations" the following maintenance: At use of the non-cash form of calculations the duty on goods payment (the performed work, the rendered service) is considered executed by the consumer from the moment of write-off of a necessary sum of money from its account.

Changes offered by the author of dissertation also would lead unifitsirovaniju a legal regime of the moment of discharge of duty of the consumer under the contract of retail purchase and sale on payment of the goods by clearing settlements. So, now, in that case when the consumer pays the goods for the contract of retail purchase and sale with use of a payment card, it is considered executed a duty on payment of the goods at the moment of write-off of the necessary sum from its bank account. In a case when calculations under the contract of retail purchase and sale are made with use of other ways of clearing settlements as it was already marked, the consumer is considered executed a duty on goods payment only at the moment of transfer of means for the settlement account of the addressee.

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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 2. The maintenance of the contract of retail purchase and sale.:

  1. 3. The form of the contract of retail purchase and sale. Features of making contract of retail purchase and sale.
  2. the Chapter II. Elements of the contract of retail purchase and sale. Especial] makings contract of retail purchase and sale.
  3. the Chapter I. The Civil-law doctrine and the legislation on retail purchase and sale. Kinds of the contract of retail purchase and sale,
  4. 1. The parties of the contract of retail purchase and sale.
  5. 1. Researches of the contract of retail purchase and sale in the Russian To jurisprudence.
  6. 2. Concept and contract elements (the foreign trade contract) international purchase and sale of the goods
  7. 3* Kinds of the contract of the retail purchase-prodazhi*
  8. 1.2. The Legal protection at purchase and sale breach of contract in the international trade right
  9. 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
  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
  12. Regulations of an establishment (change) of rates of purchase and sale of a cash foreign currency, purchase (payment) and sale of documents of payment in a foreign currency at the expense of means of citizens General provisions
  13. the First chapter. The CONTRACT of the INTERNATIONAL PURCHASE AND SALE of the GOODS In SYSTEM of CIVIL LAW of the RUSSIAN FEDERATION
  14. the Chapter II. Separate remedies at law in case of breach of contract of the international purchase and sale of the goods
  15. the Chapter I. General provisions on a legal protection in case of breach of contract of the international purchase and sale of the goods