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1. The parties of the contract of retail purchase and sale.

The buyer as the subject of the contract of retail purchase and sale.

The parties of the contract of retail purchase and sale, as well as the purchase and sale contract in general, are the seller and the buyer.

In item 492 GK the Russian Federation the legislator does not specify a figure of the buyer, and in item 5 of the Decision of Plenum of the Supreme Arbitration Court of the Russian Federation from October, 22nd 1997г. № 18 "About some questions connected with application of positions of the Civil code of the Russian Federation about the contract of delivery" it is said, that in the event that the buyer gets the goods for maintenance of its activity as the organisation or the citizen-businessman (office equipment, office furniture, vehicles, materials for repair work, etc.) at the seller who is carrying out enterprise activity on sale of the goods at retail, relations of the parties are regulated by norms about retail purchase and sale [156].

Thus, it is possible to draw a conclusion, that on the party of the buyer under the contract of retail purchase and sale can act both citizens, and legal bodies, and also the physical persons who are individual предпринимателями1.

In the legal literature it is noticed, that because "specificity of a figure of the retail seller has at institute of retail purchase and sale independent normoobrazujushchee value (causes features of regulation of the relations, not dependent on action of the factor of the economic inequality also underlying allocation of retail purchase and sale), GK should contain the accurate instructions, what factor causes those or other norms of paragraph 2 of head ZO" [157 [158].

It is represented, that the given instructions in GK the Russian Federation really could promote the decision of many questions at issue arising on the given question, including elimination the legislator of notes of a blank in regulation of relations between the seller and the buyer-nsgrazhdaninom under the contract of retail purchase and sale.

Among features of the contract of retail purchase and sale in that case when on the party of the buyer the legal body or the individual businessman acts, it is necessary to allocate the following.

1. Between the seller and the buyer - the economic inequality, but to a lesser degree, than in case of participation in the contract of the citizen-consumer exists the legal body (the individual businessman) under the contract of retail purchase and sale. It causes its smaller protection by the legislator.

2. From the first noted feature follows, that in case of participation on the party of the buyer of the legal person (the individual businessman) legal regulation of the contract of retail purchase and sale varies. The law about

ZGTP and other regulatory legal acts regulating the relations of retail purchase and sale exclusively with participation of consumers-citizens, in this case do not come under to application,

3. Because the majority of treaty provisions of retail purchase and sale are regulated by the legislator in an imperative order, and the given conditions differ depending on the one who acts on the party of the buyer - the legal body (the individual businessman) or the citizen, the contract maintenance varies: its conditions, including a condition about a subject of the contract and the rights and duties of the parties.

As to a subject of the contract of retail purchase and sale, because its features are expressed through the acquisition purpose, in case of participation on the party of the buyer of the legal person (the individual businessman) varies the purpose of acquisition of the goods. So, in this case the goods are got, on the one hand, not for the personal, family, house purposes, on the other hand, only for the purposes which have been not connected with realisation of enterprise activity. Thus, the purpose of acquisition of the goods under the contract of retail purchase and sale by legal bodies and individual businessmen is already in comparison with the purpose of acquisition of the goods the citizen.

Also, it is necessary to notice, that any acquisition by the legal body or the individual businessman becomes for the purpose of maintenance of the functioning. And the unique purpose of their functioning (it is a question of the commercial organisations) is extraction have arrived by means of realisation of enterprise activity. Thus, in case of indirect realisation of enterprise activity (for example, in case of furniture purchase in office, or kantstovarov for office workers), legal bodies (individual businessmen) the contract of retail purchase and sale consists. In case of direct realisation of enterprise activity (for example, in case of purchase by the enterprise which is carrying out trade kantstovarami, party kantstovarov), them the delivery contract consists. Thus, the purpose of acquisition of the goods the legal body (the individual businessman) under the contract of retail purchase and sale will always be "kvazi-consumer".

All aforesaid equally concerns also the noncommercial organisations in the event that they use accorded by it the legislator a right on realisation of enterprise activity so far as as it serves achievement of the purposes for the sake of which they are created, and corresponding to these purposes (item Z item 50 GK the Russian Federations).

The carried out analysis of the legislation on retail purchase and sale has shown, that in regulation of relations of retail purchase and sale with participation on the party of the buyer of the legal person (the individual businessman) there is the legal blank connected, first of all, with absence of uniform conceptual base. According to the author of dissertation, from sphere of action of many normative acts regulating retail purchase and sale, the legislator unreasonably excludes relations with participation of legal bodies (individual businessmen), acting on the party of the buyer under the contract of retail purchase and sale.

So, we already spoke about necessity of modification of commission business Rules neprodovolstvennymi, connected with absence in the considered Governmental order of specificity of a legal status of the consumer-citizen in comparison with the buyer - the legal body (the individual businessman) by the given kind of the contract of retail purchase and sale and presence of a legal blank in regulation of relations of commission business neprodovolstvennymi with their participation.

Also, it is necessary to notice, that the legislator, fixing in item 503 GK the Russian Federation the right of the buyer under the contract of retail purchase and sale on replacement of technically difficult goods in case of material breach of requirements to its quality, extends action of decision Правительства1 approving the list of such goods, only to consumers - citizens on sense of the Law about ZPP. With a view of elimination of the specified contradiction, the author of dissertation offers to change operating edition of the considered Governmental order [159 [160] [161].

Also, in our opinion, it is necessary to extend action of item 14.7 KoAP the Russian Federation (the Deceit of consumers) to relations of retail purchase and sale with participation on the party of the buyer of the legal person (the individual businessman). Imposing of the sanctions provided by specified article, on the sellers who are carrying out sale of the goods with a deceit of the buyer, without dependence from the one who it is is represented proved: the citizen or the legal body (the individual businessman). In this connection us the Russian Federation a word "потребителей11 is offered in item 14.7 KoAP to replace with a word-combination" buyers under the contract of retail purchase and sale ”.

In item 2 of item 518 GK the Russian Federation is said, that in a case when the buyer (addressee) carries out sale of the goods put to it at retail, he has the right to demand replacement in reasonable term of the goods of the inadequate quality returned by the consumer. According to item 1 of item 503 GK the Russian Federation, the buyer under the contract of retail purchase and sale to which the goods of inadequate quality if its lacks have not been reserved by the seller are sold, has the right to demand, including, and replacement of the substandard goods with the goods of appropriate quality. It turns out, that in that case, when the goods

Inadequate quality comes back the buyer - the legal body (the individual businessman), the seller under the contract of retail purchase and sale is deprived the right to demand its replacement in reasonable term and has the right, according to item 1 of item 475 GK the Russian Federation, only on proportional reduction of a purchase price, or gratuitous elimination of lacks of the goods in reasonable term, or compensation of the expenses on elimination of lacks of the goods. Thus, the buyer - the legal body (the individual businessman) has the right to replacement of the poor-quality goods at the seller under the contract of retail purchase and sale, and the seller of such right in relation to the supplier has no. In connection with the aforesaid, with a view of elimination of unreasonable infringement of the rights of the seller under the contract of retail purchase and sale in the specified situation, the author of dissertation offers to state item 2 st, 518 PS the Russian Federation in the following edition: " The buyer (addressee) who is carrying out sale of the goods put to him at retail, has the right to demand replacement in reasonable term of the goods of the inadequate quality returned by the buyer under the contract of retail purchase and sale if other is not provided by the delivery contract ".

Because the most typical subject of the contract of retail purchase and sale is the consumer-citizen, therefore on it we will stop in our research in more details.

The consumer as the subject of the contract of retail purchase and sale.

"Consumer" is the difficult social phenomenon and is studied by various sciences. Basically, the concept "consumer" is used JtHбо in economic, or in legal sense, having thus the various maintenance.

Russian dictionary makes definition of concept "consumer" as "persons or the organisations, consuming products of someone's manufacture", and to consume, means "to use something for satisfaction of requirements, to spend" 1.

The economic concept of the consumer consists that it is any subject (the citizen or the legal body), getting any blessings irrespective of the fact which it thus pursues the purposes (enterprise or consumer), that is acts as the party resisting производителю1.

As to legal definition of concept "consumer" it as it has already been noted by the author of dissertation, differs certain ambiguity. The matter is that in the current legislation the category "consumer" is used for a designation not only citizens as it is statutory about ZPP, but also legal bodies (individual businessmen). For example, in case of definition of the party (subscriber) in the power supply contract (item 539 GK the Russian Federation). The similar approach takes place and in item 2 of the Federal act from March, 31st, 1999 № 69-FZ "About gas supply in the Russian Federation" in which it is specified, that the gas consumer is legal or the physical person getting gas at the supplier or using it as fuel or raw materials. Article 426 GK the Russian Federation regulating the public contract, leaves opened a question on the one who is that its party which is specified as the consumer: only the citizen or and the legal body. It is not exhaustive list of similar examples of definitions of the consumer in the domestic legislation.

As a whole, it is necessary to notice, that in the civil legislation wider approach to consumer definition, rather than in the Law about ZPP is used,

The concept "consumer" besides civil, is used as well in other branches of law: administrative, criminal, remedial, etc., i.e. is "through". Because own definition of the specified concept of the given branches of law it is not given, in the literature it is correctly noticed, that it is necessary for applying only in the sense given to it [162 [163]

The law about ЗПП1,

Let's more in detail consider definition of concept the "consumer", resulted in the Law about ZPP. So, in its preamble it is specified, that the consumer is the citizen having intention to order, get or ordering, getting or using goods only for the personal, family, house and other needs which have been not connected with realisation of enterprise activity. The law about ZPP named signs of concept "consumer", thereby having narrowed a circle of persons which MorjT to be recognised those in comparison with economic concept of the consumer and having used such criteria as instructions on the purpose of acquisition, goods uses - the "consumer" needs which have been not connected with realisation of enterprise activity and the special subject is only the citizen (physical person).

Occurrence of the Russian definition "consumer" in its modern value was preceded by a long way: from an investment in the given concept negative smyslovoju implied sense to a recognition its full participant of a commodity market and the services, allocated with a wide range of competences [164 [165] [166]. For the last of one and a half ten years the relation to the citizen-consumer has radically changed. There was a big is standard-legal base, nanosecond only comprising definition of concept "consumer", its basic rights, but also defining mechanisms of realisation of these rights in the conditions of developing economic relations "1.

Containing in the Law about ZPP definition of concept "consumer" has appeared not at once. Before acceptance of the current Law about ZPP, for the first time attempt of definition of the given concept has been undertaken in the domestic legislation in a bill of the USSR "About quality of production and protection of the rights of the consumer" 1989 On sense of the project, the consumer productive consumers admitted not only citizens, but also.

Later, the concept "consumer" has been formulated in the Federal act from February, 7th, 1992 № 2300-1 "About protection of the rights of consumers" according to which the consumer the citizen using admitted, getting, ordering or having intention to get or order the goods (works, services) for personal household needs.

The federal act from January, 9th, 1996 № 2-FZ1 had been a little narrowed sphere of application of investigated concept because definition has been added by a word "exclusively". The legislator also has specified, that these needs should not be connected with profit extraction. The citizen having intention to order or get began to be understood as the consumer or ordering, getting or using goods (works, services) only for the personal (household) needs which have been not connected with extraction of profit. It was possible to recognise the given specification rather essential as it has eliminated ambiguities and double interpretation of this term in pravoprimenitelnoj to practice [167 [168].

From December, 17th, 1999 № 212-FZ the concept "consumer" has been brought by the federal act of the Russian Federation into accord with the text of item 492 GK the Russian Federation and words "for the personal (household) needs which have been not connected with extraction of profit" have been replaced by words "for the personal, family, house and other needs which have been not connected with realisation of enterprise activity". Thus, if earlier to the specified signs according to item 492 GK the Russian Federation the consumer was defined only for the contract of retail purchase and sale now these signs are applied to all kinds of the contracts concluded between citizens and subjects enterprise деятельности1.

Having analysed the specified changes, it is possible to notice, that they have concerned formulations of the purposes of use of the got goods (work, service): the goods should be got and used only for personal, or the family, house and other needs which have been not connected with realisation of enterprise activity. Last circumstance as it is marked in the literature, has crucial importance for definition of a scope of the consumer legislation [169 [170]. So, former edition of concept the "consumer", providing as defining criterion absence of profit on goods use, unreasonably excluded from the Law scope

0 ZPP a number of the goods (works and services), making for the consumer profit (income) though they were got and used only for personal needs. As an example it is possible to result acquisition by the consumer of agricultural machinery for processing of a kitchen garden for the purpose of reception of the certain income.

According to item 2 GK the Russian Federation, under consumers it is necessary to understand not only citizens of Russia, but also foreign subjects and stateless persons [171]. Their rights are protected equally, and citizenship is not the defining characteristic of a special legal status of the consumer as the term "citizen" is used by the legislator as a synonym of concept "physical person" and does not bear any additional loading.

Inclusion in concept "consumer" of the citizens, which else have intention to get the goods, has great value for realisation of their rights to reception of the information on the seller (manufacturer), the goods etc. Thus, some norms of the legislation on retail purchase and sale come under to application and till the occurrence moment between the parties of contractual relations. In other words, in sphere of retail purchase and sale the legislator regulates precontractual information relations between counterparts under the contract of the retail purchase-prodazhi1.

Also, according to the Law about ZPGT under the consumer under the contract of retail purchase and sale it is understood not only the citizen who has directly got or has ordered the goods, having entered in contractual relations (or having intention it to make), but also any іражданин, using a thing on lawful basises with the consent of its direct purchaser. It concerns the members of a family sharing the goods, persons by whom the thing has been presented, employee who use the goods got by the legal body and тлі. In the latter case, formally the buyer is the legal body which mutual relations with the seller are under construction on the basis of general provisions of the legislation on retail purchase and sale, however, as physical persons use the goods, their rights are protected by the consumer legislation.

Such approach is connected by that use of the goods with a view of, statutory about ZPP, is independent criterion of definition of the consumer. If necessary the citizen-user has the right to make on its own behalf corresponding demands on the basis of the Law about ZPP. The mode of use of property can change, therefore at dispute occurrence it is necessary to start with the initial purpose of acquisition of the goods which should be confirmed objective доказательствами2.

However, is not the consumer the citizen getting the goods for the organisations and at their expense for the purpose of use in manufacture (for example, acquisition of a camera for work in publishing house etc.). [172 [173]

In some cases to use the goods so to be considered as the consumer under the contract of retail purchase and sale, that citizen who has concluded the contract with the seller can only. For example, at weapon purchase when the individualization гражданина1 is required.

Also, it is necessary to notice, that concerning a number of the goods limited in a turn, but realisation subjects through a retail trading network, the restrictions established by the legislation [174 [175] [176] [177] [178] operate. So, sale of separate types of weapon can be carried out only at presence at the citizen getting the weapon, the licence for its acquisition, special rules of registration of the got weapon are thus provided.

Recently, in the legal literature the attention to the question on distribution of a special legal status of the consumer also on separate categories of legal bodies is brought. Authors offer to apply norms of the consumer legislation to such legal bodies who get the goods for household needs of the workers (labour collective), such to "the organised groups of consumers", as consumer co-operative societies, associations of proprietors of habitation and the similar associations of citizens getting the goods for realisation of the authorised problems, and not pursuing aims of extraction of profit.

According to the author of dissertation, distribution on relations with their participation of the mechanism of protection of the rights of consumers-citizens and granting of the additional possibilities fixed by the consumer legislation by it as it corresponds to the general concept and a consumer legislation orientation is represented quite proved: granting of the special, raised protection frames most economically "weak" a legal relation sling.

It is represented, that the question on a parity of concepts "buyer" and "consumer" under the contract of retail purchase and sale dares as follows. Under the contract of retail purchase and sale the concept "buyer", on the one hand, is wider than concept "consumer" as it can be not only the citizen-consumer, but also the legal body or the individual businessman. C other party, concept "buyer" - already concepts "consumer" as on its party under the contract of retail purchase and sale can act not only the citizen getting the goods, but also having intention them to get or their using.

The seller, the manufacturer, the importer, the authorised organisation as subjects of relations of retail purchase and sale.

The counterpart of the buyer under the contract of retail purchase and sale is the seller. The carried out analysis of legal retouching of contractual relations of retail purchase and sale has shown, that within the limits of relations of retail purchase and sale contractual relations are closely connected with non-contractual relations [179]. Thus, with a view of the complex analysis of contractual relations of retail purchase and sale is considered to investigate necessary also non-contractual relations of retail purchase and sale with participation on the party of the counterpart of the buyer of such subjects as: the manufacturer, the importer, the authorised organisation.

Throughout all time of operation of law about the ZIP, in concepts "manufacturer" and "seller" changes were repeatedly made. So, originally the Law about ZPP provided, that the manufacturer is the enterprise, the organisation, establishment or граждапиі! The-businessman, the making goods for realisation, As to the seller to them admitted the enterprise, the organisation, establishment or the citizen - the businessman realising the goods but the contract of purchase.

In 1996 the essential changes have been brought in the Law about ZPP, concerning concepts considered by us by the form small, but. The organisation began to be understood as the manufacturer irrespective of its pattern of ownership, and also the individual businessman, the making goods for realisation to consumers. And, accordingly, the organisation began to be understood as the seller irrespective of its pattern of ownership, and also the individual businessman, the realising goods to consumers under the contract of purchase.

According to the accepted changes, first, the seller and the manufacturer not simply the enterprises, the organisations and establishments, and any legal and physical persons that allows not to exclude from sphere of operation of law about ZPP the subjects co-operating with consumers whom the form and structure are distinct from usually operating pases the market of persons now admit. And, secondly, specifying that realisation of the goods should take place now only concerning consumers, the legislator has deduced from limits of regulation by the Law about ZPP mutual relations of managing subjects among themselves

By Law edition about ZPP from 1999, in definition of considered concepts of a word of "pattern of ownership" have been replaced with a phrase of "the organisation-legal form". We will notice, that the manufacturer can and not realise production to directly consumer, selling its organisations which already, in turn, will offer the goods to the consumer. Despite it, the manufacturer bears responsibility before the consumer for quality of the goods made by it. If the manufacturer directly realises the goods to the consumer it is considered the seller and on it all positions about the seller of the goods extend. The law about ZPP not [180] excludes also situations when the person along with functions of the seller, simultaneously carries out functions of the manufacturer.

Also, investigating functions of the seller in relation to the consumer, the author comes to conclusion, that the seller can carry out not only the direct duties as the parties of the contract of retail purchase and sale, but also certain mediatorial functions. Expansion of functions of the seller under the contract of retail purchase and sale is connected with last changes of the legislation, in particular acceptance of item 13.1 of the Law of the Russian Federation "About banks and bank activity" 1 according to which the seller has the right to accept from buyers-physical persons cash money resources as a payment for telecommunication services, premises and utilities [181 [182].

The edition of the Law accepted in 2004 about ZPP assumes also possibility of participation in relations of retail purchase and sale

The organisation authorised by the manufacturer (seller) or the individual businessman authorised by the manufacturer (seller) (further - the authorised organisation or the authorised individual businessman). The authorised organisation or the authorised individual businessman is the organisation which is carrying out certain activity, or the organisation created in territory of the Russian Federation by the manufacturer (seller), including the foreign manufacturer (the foreign seller), carrying out

Certain functions on the basis of the contract with the manufacturer (seller) and authorised by it on acceptance and satisfaction of requirements of consumers concerning the goods of inadequate quality, or the individual businessman registered in territory of the Russian Federation, carrying out certain functions on the basis of the contract with the manufacturer (seller), including with the foreign manufacturer (the foreign seller), and authorised by it on acceptance and satisfaction of requirements of consumers concerning the goods of inadequate quality.

Introduction of this concept is not an innovation as and before entering of the specified amendments into the Law about ZPP the concept of the organisation which are carrying out functions of the seller (manufacturer), met in the Law text (for example, in item 15,18 item). However, the concept of this organisation revealed not in the Law about ZPP, and in the order of the Ministry of the Russian Federation on an antimonopoly policy and support of business from May, 20th, 1998 № 160 "About some questions connected with application of the Law of the Russian Federation" About protection of the rights of consumers "1. The specified organisations were understood as the organisations with which the seller (manufacturer) are concluded dogovory on fulfilment of certain actions on meeting commitment of the seller (manufacturer), provided items 18 of the Law about ZPP. There also it was specified, that performance of one, several or all requirements of the consumer provided by specified article can be entrusted to the organisations.

About ZPP the concept of the given organisation is expanded and concretised by the specified edition of the Law. First, the individual businessman can be the given subject of relations of retail purchase and sale besides the organisation also. Secondly, the authorised organisation can be created not only domestic, but also and the foreign manufacturer (the foreign seller). Thirdly, to the authorised organisation (the individual businessman) can be assigned as a part of functions, and weigh their volume.

More often such subjects of relations of retail purchase and sale are presented by the various service centres, representations of manufacturers, repair shops. If the seller (manufacturer) has concluded the contract with the third party about performance of its functions, the consumer has not the right to address with the requirements to the seller (manufacturer). On

On

To the legal nature, the given contract is the contract on rendering vozmezdnyh services (gl. 39 GK the Russian Federation).

Also, Law edition about ZPP provides possibility of participation in the relations of retail purchase and sale regulated by the Law about ZPP, the new subject - the importer 2004. It, according to the Law about ZPP, the organisation irrespective of the organisation-legal form or the individual businessman, carrying out import of the goods for its subsequent realisation in territory of the Russian Federation is. An innovation of the specified edition of the Law about ZPP is the establishment of responsibility of importers for inadequate quality of the import goods.

Necessity of an establishment of responsibility of the importer, probably, has been caused first of all by that now the organisations authorised by the foreign manufacturer responsible before the consumer for inadequate quality of the goods in territory of the Russian Federation, as a rule, are absent. Because on the foreign manufacturer who is not carrying out the activity in territory of the Russian Federation, action of the legislation of the Russian Federation does not extend, the consumer is deprived possibility concerning the foreign manufacturer to realise the rights given by the consumer legislation.

However it is difficult to present, how in practice the importer and as in a chain of the firms which are carrying out delivery of the goods to Russia (and at times this chain is great enough) to allocate that which should answer before the consumer for the poor-quality goods will answer before the consumer. Wrongful putting on of additional responsibility on the organisation specialising only on transportations of the goods thus is represented.

Also, it is necessary to notice, that the legislator, entering Law edition about ZPP 2004 of new subjects of relations with consumer participation under the contract of retail purchase and sale, in any way has not changed the position maintenance

Preambles, according to which "... The Law regulates the relations arising between consumers and manufacturers, executors, sellers at sale of the goods...". Thus, according to the author of dissertation, it is necessary to make changes to the specified position of the law about the ZIP and to specify in possibility of participation in adjustable relations also the importer and the authorised organisation, the authorised individual businessman.

So, on the party of the counterpart of the buyer under the contract of retail purchase and sale, can act:

1. The organisation: commercial or noncommercial, irrespective of the organisation-legal form, Russian or foreign. According to item 50 GK the Russian Federations, the noncommercial organisations are the organisations which do not have extraction of profit as a main objective and not meting received profit between it участниками1. In the same place it is underlined, that the given organisations can carry out enterprise activity only so far as as it serves achievement of the purposes for the sake of which they are created, and corresponding to these purposes.

The resulted characteristic of the noncommercial organisations provided st, 50 GK the Russian Federation, is reproduced in item 2 of the Federal act from

' AT

On January, 12th, 1996 № 7-FZ ”0 noncommercial organisations" ". To these laws the creation purposes are concretised, provided new organizational - [183 [184]

Legal forms of the noncommercial organisations, and also character of their enterprise activity is defined. According to item 24 of the specified law enterprise activity of the noncommercial organisations acquisition and realisation of securities, the property and non-property rights, participation in economic societies and participation in the limited partnerships as the investor admit manufacture of the goods making profit and the services answering to the purposes of creation of the noncommercial organisation, and also.

As to participation on the party of the counterpart of the buyer under the contract of retail purchase and sale of the foreign organisation, that, according to item 2 GK the Russian Federation the rules established by the civil legislation, are applied to relations with participation of foreign legal bodies if other is not provided by the federal act. In this connection, the foreign legal bodies who are opening in an order established by the legislation the branches and carrying out the activity as manufacturers, sellers in territory of Russia, are obliged to observe the legislation of the Russian Federation, including the consumer legislation.

All organisations for employment by certain kinds of activity, statutory, should have licences. For example, retail trade in some kinds of the goods (first of all podaktsiznymi: alcohol, tobacco and jewels, gasoline and cars etc.) it can be carried out only on the basis of the special licence.

Also, as to participation in the contract of retail purchase and sale of the legal person, both on the party of the buyer, and on the party of the seller it is necessary to notice, that in most cases [185] the considered contract consists its authorised representative. This representation can be based on the employment contract, the civil-law contract, the administrative act or the contract of agency and to appear from conditions, in

m

With which the representative [186] operates.

Voluntary (based on the contract) the representation is possible also in case the physical person, including being the individual businessman is represented. Also, concerning making contract of retail purchase and sale probably lawful representation when representation relations arise on law express indication. So, legal representatives of juvenile children including under the contract of retail purchase and sale, their parents which powers are based on the motherhood and paternity facts are.

2. The individual businessman: Russian or foreign.

Thus, the contract of retail purchase and sale cannot be concluded only between citizens (item 1 of the decision of Plenum of the Supreme Court of the Russian Federation № 7 from 29.09.1994 "About practice of consideration by vessels of affairs about protection of the rights of consumers ’ 1).

According to item 1 of item 308 GK the Russian Federation in the event that some creditors participate in the obligation and (or) debtors, takes place the obligation with plurality of persons. Analyzing structure of subject structure of the contract of retail purchase and sale, the author of dissertation comes to conclusion about possibility of plurality of persons in the considered obligation both on the party of the buyer, and on the party of its counterpart.

Let's consider the most typical cases of plurality of persons on the party of the buyer under the contract of retail purchase and sale. So, in that case when the goods are got by the citizen-consumer, the most widespread case of occurrence of plurality of persons on its party is the fact of use of one thing several members of a family of the consumer. For example, if one TV on all family also consumers - all members of a family become users of this TV is bought. Also,

Plurality of persons on the consumer party is possible in CnvrHae injuries by the goods at once to several members of a family. In the considered cases, the bases of occurrence of plurality of persons on the party of the buyer - of the citizen are connected by that use of the goods with a view of, statutory about ZPP, is independent criterion of definition of the consumer. Thus, possibility of plurality of persons on the party of the buyer-citizen is fixed in the most legislative definition of concept "consumer".

All told about the bases of occurrence of plurality of persons on the consumer party equally can be carried and to buyers - to legal bodies (individual businessmen). Because in a case when the goods are got by the legal body (the individual businessman), users, i.e. consumers but to sense of the Law about ZPP, always are its workers-citizens and to make the demands connected, for example, with a lack of the goods, injury by goods lack, can both the legal body [187], and members of its collective. Thus it is necessary to consider, that the rights of consumers and buyers - legal bodies (individual businessmen) are protected on the basis of various norms of the legislation on retail purchase and sale. Norms of the consumer legislation in the latter case do not come under to application.

As is known, obligations with plurality of persons, both active, and passive, can be share, solidary or subsidiary. In item 326 GK the Russian Federation is said, that at solidarity of the requirement of any of solidary creditors has the right to make to the debtor the demand in full, and obligation execution completely to one of solidary creditors releases the debtor from execution to other creditors. Thus, it is possible to approve, that in certain cases, the requirements arising at several promisees of retail purchase and sale, are solidary. So, for example, in that case when in got under the contract of retail purchase and sale the goods used at once by several members of a family, the lack is found out, any of them has the right to make to the debtor the corresponding demand (for example, about lack elimination) in full. Execution of the given obligation completely to one of members of a family - solidary creditors releases the debtor from execution to other creditors.

In other cases, for example, in case of causing by a lack of the goods of harm to health at once to several members of a family, the requirement of creditors will be share. So, in shared obligations each of creditors has the right to demand execution in an equal share with others if only other distribution of shares directly does not follow from the law, other legal act or conditions of the concrete obligation (item 321 GK). In this case, proceeding from conditions of the considered obligation, distribution of shares will be unequal.

Let's consider cases of plurality of persons on the party of the counterpart of the buyer. The carried out analysis of the legislation on retail purchase and sale has shown, that in that case when as the buyer under the contract of retail purchase and sale the citizen acts, by the legislator is provided bolshee quantity of the bases of occurrence of plurality of persons on the party of its counterpart, in comparison with participation on the party of the buyer of the legal person (the individual businessman). So, in case of sale of the goods to the consumer of inadequate quality (the item 18 Laws about ZPP), it has the right to show at own discretion either to the seller, or the authorised organisation or the authorised individual businessman the requirement about gratuitous elimination of lacks of the goods or the pas reimbursement their correction by the consumer or the third party, or about replacement of the goods by the goods of similar mark (model, the article) or on the same goods of other mark (model, the article) with corresponding recalculation of a purchase price, or about proportional reduction of a purchase price or about refusal of execution of a contract of purchase and sale and return of the sum of money paid for the goods. Requirements about gratuitous elimination of lacks of the goods or the reimbursement for their correction by it or the third party, about replacement of the goods by the goods of similar mark (model, the article), about return of the sum of money paid for it the consumer has the right to show to the manufacturer, either the authorised organisation or the authorised individual businessman, or the importer.

In CHjrHae sales of the goods of inadequate quality to the buyer - to the alien, the requirements fixed in item 503 GK the Russian Federation (the Rights of the buyer in CHjrHae sales to it of the goods of inadequate quality) mo -ut to be shown them only to the seller. Plurality on the party of the counterpart of the buyer - the legal person (the individual businessman) is possible only in CfljrHae injuries owing to goods lacks (item 1095 item, 1096 GK the Russian Federation). So, in item 1096 item 1 (the Persons responsible for harm, caused owing to lacks of the goods, work or service) it is said, that the harm caused owing to lacks of the goods, comes under to compensation for choice the victim the seller or the manufacturer of the goods.

The carried out analysis of the legislation on retail purchase and sale leads the author of dissertation to a conclusion, that the duty (responsibility) of counterparts of the buyer under the contract of retail purchase and sale is solidary only partially. So, according to item 323 GK the Russian Federation (the Right of the creditor at a solidary duty) at a solidary duty of debtors the creditor has the right to demand execution both from all debtors in common, and from any of them separately, besides as completely, and regarding a debt. In the relation of retail purchase and sale the buyer and the consumer execution only from any of the debtor separately, and only in full can demand. Also, proceeding from sense of the legislation on retail purchase and sale, the promisee of retail purchase and sale, the nanosecond received full satisfactions from one of joint debtors, has no right to demand half-received from other joint debtors, and joint debtors under the contract of retail purchase and sale do not remain obliged to full execution of the obligation. If the buyer or the consumer has sued for choice, for example, to the seller, it any more has no right to make the demands to the manufacturer in case of its incomplete execution.

More often plurality of persons in the obligation is formed already from the moment of its occurrence at a making contract stage, In a case with the contract of retail purchase and sale, plurality of persons usually arises only subsequently, for example, in the course of using the goods and detection in it of a lack, or injuries by goods lack.

According to item 325 GK the Russian Federation, in a case when the solidary duty is completely executed by one of debtors, other debtors are released from its execution to the creditor. That debtor who has executed a duty, has the right of claim for exoneration to other debtors in equal proportions minus a share falling on it. Thus, under the general rule, as a result of execution of a solidary duty by one of debtors, there is a share recourse obligation. However, in that case when the solidary duty is executed by the seller under the contract of retail purchase and sale, according to item 518 GK the Russian Federation (the Consequence of delivery of the goods of inadequate quality) it has the right to show claim for exoneration only to the direct supplier. Thus, the specified recourse obligation is not share, but bilateral. Also, in some cases, for example, in case of presence of partial fault of the seller in occurrence of a lack of the goods (goods storage in inadequate conditions etc.), pcipeccHoc the obligation of the supplier will be not full, but partial, only regarding absence of fault of the seller under the contract of retail purchase and sale.

Also, the carried out analysis of the legislation on retail purchase and sale allows to allocate recourse obligations corresponding and inappropriate to the carried out obligation. So, according to item 503 GK the Russian Federation, the buyer - the legal body (the individual businessman) under the contract of retail purchase and sale can demand replacement of the goods of inadequate quality on new, even in case of detection in it of an insignificant lack. And according to item 518 GK the Russian Federation demand replacement from the supplier of the goods with an insignificant lack the retail seller only in case of return by its consumer - the citizen can. In case of return of the specified goods by the buyer - the legal body (the individual businessman), the seller under the contract of retail purchase and sale can demand from the supplier, according to item 475 GK the Russian Federation, only: decrease in a purchase price of the goods, elimination in it of lacks, the reimbursement for elimination of lacks.

Thus, on the basis of the spent analysis of legal relations of retail purchase and sale in case of plurality of persons on the party of the buyer and its counterpart, the author of dissertation classifies joint liabilities on following bases:

- On used reception of an establishment of a joint liability in the legislation differ: obvious solidarity - in case of the phrase use, with word use is solidary"(with the various terminations); and the latent solidarity - in case of an establishment of the mechanism of solidarity or when possibility of occurrence of a joint liability is provided in the most legislatively certain concept of the subject of concrete legal relation;

- On volume of powers of the party of a joint liability: the full and limited solidarity;

- By the form arising recourse obligation: a joint liability with the share and bilateral recourse obligation; the full and partial recourse obligation; the recourse obligation corresponding and mismatching the executed obligation.

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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 1. The parties 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. 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. 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
  16. 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
  17. Bessolitsyn Dmitry Aleksandrovich. the LEGAL PROTECTION In case of BREACH OF CONTRACT of the INTERNATIONAL PURCHASE AND SALE of the GOODS. The DISSERTATION ON COMPETITION of the SCIENTIFIC DEGREE of the MASTER OF LAWS. St.-Petersburg -,
  18. UGRIN Timothy Stepanovich. the CONTRACT of the INTERNATIONAL PURCHASE AND SALE of the GOODS. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -, 2002 2002
  19. 2. The legislation on a retail doll-sale.
  20. 1. Operations on purchase and earth sale.