The imposition of services on the consumer is a common violation. Insurance is the most common service offered. Almost every loan recipient is faced with a “persuasive request” from the bank to pay for the services of an insurance company.
At the same time, not every citizen knows that he can easily refuse to sign an insurance contract.
Another popular type of imposed services are additional paid features. mobile operator. At the same time, the consumer may not even know that such services are connected to him.
Legislation governing imposed services
Consumers can protect their rights by using:
- Law on Consumer Protection, where it is indicated that imposed services are not allowed in legal relations between the consumer and the contractor in any form. In particular, it says that if the contract entails losses for the consumer or infringes on his rights, then it is declared invalid.
- Code of Administrative Offenses. It provides for performers who impose additional services on the consumer in the form of a fine, the maximum amount of which is 50,000 rubles.
There is no criminal liability for such actions.
How to act as a consumer
In order to protect yourself from the imposition of services to the consumer, you need to perform the following actions.
note
The legislator defines the seller's jurisdiction when trying to deceive the buyer. So, if the amount of the claim is less than 50 thousand rubles, they are considered by the district courts. If the amount is larger, the case goes to the Magistrate's Court. Read more about jurisdiction in this
- Read the contract carefully before signing it. Some clauses of the contract may fix the obligation for the consumer to perform additional actions, and then it will be much more difficult to challenge their commission.
- Before concluding a transaction, find out from the seller or contractor the conditions for the purchase of goods or the provision of services. In particular, you need to learn about the possibility to refuse additional services and purchases.
- If the consumer has disagreements with an employee of the organization, first of all it is worth trying to resolve them with the help of the manager.
- If it was not possible to resolve the issues that arose orally, then the consumer needs to state his claims in writing and send them to the head of the organization. The letter is drawn up in 2 copies. One remains with the consumer, the second is sent to the addressee by registered mail with a notification of receipt.
- In case of refusal to satisfy the requirements set out in the letter, the consumer needs to apply for the protection of his rights to third-party organizations. Depending on the situation, this may be public organizations, authorities or the courts.
The rules for protecting rights from an imposed service are not contained in the articles of the Civil Code of the Russian Federation, but, as in any other case, the consumer will need to prove the existence of violations on the part of the contractor. Evidence can be written documents, audio and video recordings, testimonies of witnesses, etc.
Where to go to protect your interests
So, when imposing services, the consumer can protect his rights in the following bodies:
Rospotrebnadzor
It is the main consumer protection body. It is necessary to apply there in writing, providing evidence of the illegality of the actions of the performer. For example, if the bank imposes the services of an insurance company on you, you can record a conversation with a bank employee on audio or provide a copy of the contract to Rospotrebnadzor, where insurance of collateral is indicated as a duty for the consumer.
Prosecutor's office
The main supervisory body of the country, which considers issues of violation of the rights of citizens by public and private organizations. You can apply to the prosecutor's office, for example, in case of violation of the rights of car owners when issuing an OSAGO policy.
Federal Antimonopoly Service
Engaged in the regulation of legal relations in financial system. In particular, its competence includes the regulation of the rules for concluding transactions between credit institutions and borrowers.
Court
It is necessary to apply to the court for the protection of violated rights when applications to other bodies have not brought the necessary results. It should be remembered that a statement of claim in court is subject to state duty and the processing time for the case can take up to several months.
Thus, the imposition of services under the consumer protection law is unacceptable, but many organizations still continue to resort to “voluntary-compulsory” insurance, connection of paid functions, etc. To protect their rights, the consumer should not sign an agreement containing imposed additional services, and seek help from the competent authorities.
The specialist will answer your questions in the comments to the article.
What guarantees does the law provide to citizens-consumers?
What sanctions are established for the presence in the contract of conditions that infringe on the rights of the consumer?
Is it legal for a bank to require an insurance contract to conclude a loan agreement?
In contracts, there are often conditions that guarantee the fulfillment of obligations by the counterparty to the maximum extent: increased responsibility, various methods of security, the right to unilaterally withdraw from the contract, etc. At the same time, business entities minimize and limit their liability to the counterparty, as far as possible under the terms of the obligation . In addition, in order to get highest profit and increasing sales, sellers are trying to impose additional services. Such conditions are included in the main contracts, or the main contract is signed only if the accompanying contracts with imposed services are concluded.
Formally, acting within the framework of the principle of freedom of contract, sellers determine the possibility for the client to receive the required service by purchasing another, related service. And in some cases, in the absence of additional services, they simply require an additional fee (for example, charging a commission for opening and maintaining a loan account, for early repayment of a loan, etc.).
Such abuses daily affect the rights and legally protected interests of many consumer citizens in the most various areas- from services Catering, cinemas and attractions to banking and insurance services.
The sellers establish the terms of contracts with imposed services unilaterally and fix them in forms and other standard forms. Citizens-consumers can conclude such an agreement only by joining the proposed conditions as a whole (Article 428 of the Civil Code of the Russian Federation).
The conclusion of a contract by accession significantly limits the principle of freedom of contract, since it excludes the possibility of citizens-consumers to participate in the formation and determination of the terms of the transaction.
Consumer Guarantees
Consumer citizens are economically more weak side and need increased protection from the state, which entails the need to limit the freedom of contract for the other party, that is, for the business entity, - indicates the Constitutional Court of the Russian Federation in its decision of February 23, 1999 No. 4-P.
When a citizen purchases goods (works, services) for personal household needs, he enjoys the rights of a party to an obligation in accordance with the Civil Code, as well as the rights granted by the Federal Law on the Protection of Consumer Rights of February 7, 1992 No. ).
The law establishes a number of guarantees for citizens. In particular, the right of the consumer to receive complete, timely and reliable information about the purchased goods, works or services, about the seller, the possibility of full compensation for losses and compensation for moral damage, alternative jurisdiction, exemption from paying duties if the claim costs up to 1 million rubles. (Article 12 of the Law, subparagraph 13, paragraph 1 and paragraph 3 of Article 333.36 of the Tax Code of the Russian Federation).
Rights Protection
With regard to the situation with the imposition of services, the possibility of protecting consumer rights is provided for in Article 16 of the Law.
The terms of the contract that infringe the rights of the consumer in comparison with the rules established by laws are recognized as invalid. If, as a result of the execution of a contract that infringes on the rights of the consumer, he has incurred losses, they are reimbursed by the manufacturer (executor, seller) in full.
Our reference
It is not allowed to impose on the consumer any additional service of any kind and properties for a fee, to make the receipt of the service dependent on the order of the additional service and its payment, to impose on the consumer any obligations not provided for by law
It is prohibited to condition the purchase of certain goods (works, services) on the obligatory purchase of other goods (works, services). In case of violation of the consumer's right to a free choice of goods, possible losses of the consumer are compensated by the seller (executor) in full.
It is forbidden to condition satisfaction of the requirements of consumers presented during warranty period, conditions not related to the shortcomings of goods (works, services). Often, warranty obligations are drawn up in such a way that the buyer can use the warranty only when he uses the services of a particular organization, otherwise he will be denied warranty service. Such a rule is void, because the service is imposed: if you do not contact a specific seller, you will lose the right to a guarantee.
The seller (executor) is not entitled, without the consent of the consumer, to perform additional work, services for a fee. The consumer has the right to refuse to pay for such works (services), and if they are paid, the consumer has the right to demand that the seller (executor) return the amount paid.
For the inclusion in the contract of conditions that infringe on the rights of the consumer, fines are established for officials (entrepreneurs) in the amount of one to two thousand rubles; for legal entities - from 10 thousand to 20 thousand rubles. (Article 14.8 of the Code of Administrative Offenses of the Russian Federation).
legal consultation
Freedom of contract
Alexander Bychkov
The principle of freedom of contract is one of the main principles of Russian civil legislation.
Physical and legal entities acquire and implement civil rights their own will and in their own interest. They are free to establish rights and obligations on the basis of the contract and to determine any conditions of the contract that do not contradict the law (clause 2, article 1 of the Civil Code of the Russian Federation). Citizens and legal entities exercise their civil rights independently at their own discretion (Clause 1, Article 9 of the Civil Code of the Russian Federation), except when the content of the relevant condition is prescribed by law or other legal acts.
The parties may conclude agreements, both provided for in the law and other legal acts of the Russian Federation, and not provided for (unnamed agreements), as well as conclude mixed agreements containing elements of various agreements (Article 421 of the Civil Code of the Russian Federation).
However, as emphasized in judicial practice, the principle of freedom of contract presupposes the good faith of the actions of the parties, the reasonableness and fairness of contractual terms, in particular, their compliance with the actual economic meaning of the agreement being concluded, compliance with the principle of equality of participants in civil legal relations (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 12, 2011 No. 17389/10). The principle of freedom of contract does not exclude the observance of the rules of good faith, reasonableness and fairness when determining its content (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of September 26, 2006 No. A43-3546 / 2006-4-74). Actions aimed solely at causing harm to another person or abuse of the right in other forms are not allowed (Article 10 of the Civil Code of the Russian Federation).
The statute of limitations, within which it is allowed to bring to administrative responsibility for violation of consumer rights, is one year from the date of the offense (part 1 of article 4.5 of the Code of Administrative Offenses of the Russian Federation). The offense itself cannot be classified as continuing, it is considered to have taken place at the time of signing (concluding) an agreement containing unacceptable conditions (Decree of the Federal Arbitration Court of the West Siberian District dated January 19, 2011 No. A03-6852 / 2010).
When facts of violation of their rights are revealed, consumers have the right to apply to the court for their restoration and protection, bearing in mind that their claims in the amount of up to 1 million rubles. are not subject to duty, and also contact the territorial department of Rospotrebnadzor.
Contracts that infringe on the rights of consumers are often found in the field of consumer and cultural and entertainment services. In practice, the courts bring unscrupulous sellers to administrative responsibility for various abuses related to the imposition of additional services on consumers (Table 1).
| No. p / p | |
|---|---|
| 1 | for the developer's refusal to transfer the apartment to the shareholder: - until the moment of payment of the cost of the metal door, which was not provided for either by the terms of the contract between them, or by the design and estimate documentation (Resolution of the Federal Antimonopoly Service of the Central District of September 30, 2004 No. A14-2794-04/70/13); – until the conclusion of the service contract apartment building With management company specified by the developer (Resolution of the Federal Antimonopoly Service of the Volga District dated November 9, 2009 No. A12-11286 / 2009) |
| 2 | for the inclusion in the contract of sale of a washing machine of the condition on the need to purchase a certificate of an additional service program for a fee for 2 years, since such a certificate, without installing additional services, replaces the consumer's right to free elimination of defects in the goods if they are detected during the warranty period (decree Federal Antimonopoly Service of the Ural District dated September 19, 2006 No. Ф09-8209 / 06-С1) |
| 3 | for setting a fine by the owner of a restaurant or cafe for drinking food and drinks brought with them, since it is not allowed to impose a fine for the very fact of taking actions without determining the amount of damage caused or in the absence of it at all, it is not allowed to establish a fee for a service that is not provided (FAS resolution of the Urals District dated January 26, 2009 No. Ф09-10590 / 08-С1) |
| 4 | for the provision of services for visiting attractions, subject to the purchase of a plastic card for a fee. The fact that a plastic card is a technically justified element of the park economy and without its purchase it is impossible to operate the attractions does not matter, since the imposition of this service is not allowed (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated November 7, 2008 No. F08-6654 / 2008) |
| 5 | for the establishment by the university in the study contract of the condition on the need to purchase journals for a fee, that after the issuance of an order to enroll a student in the first year, if he terminates the contract, the fee for the first year is not refundable (decree of the Federal Antimonopoly Service of the North-Western District of August 12 2010 No. А56-74250/2009) |
| 6 | for the inclusion in the contract of sale of the conditions for the provision of warranty service only if there is a concluded contract for service maintenance, the establishment of a penalty for violation by the consumer of the deadline for fulfilling his obligations, the collection of a fine for termination of the contract by the consumer through his fault (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 9, 2010 No. A28-4694 / 2010) |
| 7 | for charging a fee for issuing a ticket by the bus station, since the ticket itself is not a product, but only certifies the right of the consumer to use the transportation service, and therefore the issuance of a ticket cannot be recognized as an independent service No. А31-10272/2009) |
| 8 | for refusing admission to the cinema if you have with you food products purchased not at the cinema bar, but at another point of sale(Resolution of the Federal Antimonopoly Service of the East Siberian District of March 4, 2011 No. А33-12127/2010) |
Banking and insurance
In banking practice, it is common to require an additional insurance contract when granting a loan. There are two opposing views on the legality of such a requirement.
First. The requirement to conclude an insurance contract in addition to the loan contract is unacceptable. The law provides for voluntary and compulsory insurance, while compulsory insurance is possible only in cases established by law (Article 927 of the Civil Code of the Russian Federation). The fulfillment of an obligation may be secured by a penalty, a pledge, a guarantee, a bank guarantee, as well as by other means provided for by law or an agreement (Article 329 of the Civil Code of the Russian Federation). However, this does not mean that an insurance contract can be attributed to the number of ways. It is prohibited to condition the conclusion of a loan agreement with the obligatory conclusion of an insurance agreement, to establish the right of a bank to demand early repayment of the loan amount with interest and the right to foreclose on the pledged property in the absence of an insurance agreement, to establish liability in the form of a penalty for failure to fulfill the obligation to conclude an insurance agreement. Such conclusions are contained in the ruling of the Omsk Regional Court dated July 7, 2010 No. 33-4139/10. This view is shared by the Federal court of Arbitration The Central District, which believes that since the borrower's obligation to insure his life and health is not provided for by law, it is illegal to include a mandatory insurance clause in a loan agreement with a bank. In addition, insurance in relation to lending is an independent service (Decree of December 23, 2010 No. А08-3307 / 2010-17).
Similar conclusions are contained in the decisions of the Federal Arbitration Court of the West Siberian District dated December 17, 2010 No. A03-8828 / 2010 and dated September 2, 2010 No. A45-27852 / 2009, the Federal Arbitration Court of the Far Eastern District dated December 10, 2008 No. F03-5068/2008.
There is another approach that allows the requirement for insurance. The main source of income for the borrower to repay the loan is his salary, the receipt of which directly depends on the health of the citizen, insurance of the corresponding risks is associated with ensuring the repayment of loans, - indicated in the cassation ruling of the St. Petersburg City Court of January 31, 2011 No. 33-1155 / 2011 . The admissibility of the obligation of the borrower to insure his life in the loan agreement is expressly provided for by the current instructions of the Bank of Russia dated May 13, 2008 No. 2008-U “On the procedure for calculating and communicating the full cost of the loan to the borrower-individual”. When calculating the cost of a loan to individuals (consumers), the bank is obliged to take into account the borrower's payments in favor of third parties in the cost of the loan. These payments include, among other things, payments for the life insurance of the borrower (clause 2.2 of the Instructions).
The arguments that the borrower must conclude an insurance contract with a specific insurance company before the actual provision of a loan, which violates the right to freedom of choice of a party under the contract and leads to an increase in costs, makes the purchase of some goods the purchase of others, the judges considered unreasonable, since for making a decision that the loan is indeed secured by life and health insurance of the borrower, the bank needs to be sure that in the event of an insured event, the insurance company will be able to carry out the proper insurance payment, since the bank was the beneficiary of the insurance contract. If at the time of the conclusion of the loan agreement there is no such confidence, the bank cannot consider the loan secured, cannot make a decision on issuing a loan, and therefore the bank is interested in the borrower being insured by a solvent insurance company. In addition, in the event of an insured event, the bank must have information about the insurance company to which it must apply as a beneficiary to receive an insurance payment.
The Federal Arbitration Court of the Urals District indicated that the requirements of paragraph 2 of Article 16 of the Consumer Rights Protection Law apply to cases where the product or service itself and the subsequent product or service are sold (provided) by the same person, in connection with which the the condition of insuring property from another person is not subject to the prohibition of imposing services (decree of March 24, 2008 No. Ф09-1803 / 08-С1). In their later decisions of November 18, 2008 No. F09-8531 / 08-S1, of September 29, 2009 No. F09-7322 / 09-S1 and of February 3, 2011 No. F09-11602 / 10-S1 of the judge pointed out that such a condition of the loan agreement significantly limits the subjective rights of the consumer and makes their implementation dependent on the will of a third party.
The first point of view seems to be correct, since the possibility for the borrower to obtain a loan is made dependent on the conclusion of an insurance contract by him. The two named financial services in relation to each other are independent, their imposition is unacceptable. The fact that contracts with the borrower are concluded not by one person, but by a bank and an insurer, does not legal value, since it does not follow from the content of the norm of Article 16 of the Law that it does not apply to cases where the imposed services are provided by a third party that has nothing to do with the main contract. In addition, the bank is not entitled to engage in insurance activities, as expressly stated in Article 5 federal law dated December 2, 1990 No. 395-1 “On banks and banking activities”.
Otherwise, there is a situation when the borrower had the opportunity to conclude a loan agreement with the bank without concluding an insurance agreement. In paragraph 8 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 No. 146, it is indicated in this regard that such a state of affairs is permissible if the insurance service is not imposed on the consumer. In the example given in the letter, when issuing loans to citizens, the bank applied the rules developed by it for issuing loans to individuals for the purchase vehicles. According to the rules, life and health insurance of the borrower was a measure to reduce the risk of loan default. At the same time, the rules allowed for the issuance of a loan even in the absence of an insurance contract, but in this case a higher interest rate was set on the loan. The bank was able to prove that the difference between these two rates is not discriminatory. In addition, the bank's decision to grant a loan did not depend on the borrower's consent to insure his life and health in favor of the bank. The loan agreement being drawn up also contained a condition that the amount of debt on the loan (in terms of the principal amount of the debt and interest accrued but not paid for using the loan) is reduced by the amount of insurance compensation received by the bank from the insurance company upon the occurrence of an insured event. The court also drew attention to the fact that the difference between the interest rates for loans with insurance and without insurance was reasonable. As can be seen from the loan application signed by the borrower, he chose the loan option, which provides life and health insurance as one of the mandatory conditions, with a lower interest rate. Thus, the circumstances of the case indicate that there was no imposition of insurance services when issuing a loan.
Any is illegal Additional requirements and conditions imposed by insurers on their customers, imposing additional obligations on them that are not provided for by law. The Federal Arbitration Court of the Moscow District pointed out that the inclusion in auto insurance contracts of the obligation of the insured to equip the insured vehicle a set of anti-theft devices directly infringes on the rights of the consumer (Decree of November 6, 2008 No. KA-A40 / 9735-08).
It is not allowed to establish a commission or a penalty for early repayment of a loan by the bank. The debtor has the right to fulfill the obligation ahead of schedule, unless otherwise provided by law, other legal acts or the terms of the obligation, or follows from its essence (Article 315 of the Civil Code of the Russian Federation). The possibility of early repayment of a loan granted at interest, subject to the consent of the lender, is provided for in Article 810 of the Civil Code. The law stipulates the borrower's right to early repayment only with the consent of the lender and does not connect it with the need to pay a commission.
By virtue of Article 393 of the Civil Code, the possibility of imposing a property obligation on the debtor is made dependent on the non-performance or improper performance by him of his obligation to the creditor. That is, a commission is possible when the borrower does not repay or untimely repays the debt. The actions of the borrower for the early repayment of the loan are not non-fulfillment or improper fulfillment of the corresponding obligation and, accordingly, cannot entail the onset of consequences, including the emergence of the creditor's rights to present additional property claims against the debtor and the debtor's obligations to satisfy these requirements. Said conclusion is confirmed judicial practice(Decrees of the Federal Arbitration Court of the Volga District of August 23, 2010 No. A65-26823/2009, of the West Siberian District of November 15, 2010 No. A45-6220/2010). In addition, it is not allowed to establish a commission for the very fact of issuing a loan, as indicated by the Federal Arbitration Court of the Moscow District in its decision of December 28, 2010 No. KA-A41 / 16204-10.
| No. p / p | The seller is held liable |
|---|---|
| 1 | granting a loan under the condition of registration bank card, opening and maintaining a bank account (Resolution of the Federal Antimonopoly Service of the Urals District of September 3, 2008 No. Ф09-6296 / 08-С1) |
| 2 | condition of the loan agreement on the term for the borrower to fulfill the obligation to the bank: - from the moment the money is credited to his correspondent account, since it makes the fulfillment of the borrower's obligation dependent on the actions of banks (Resolution of the Federal Antimonopoly Service of the Moscow District dated December 28, 2010 No. KA-A41 / 16204-10); - from the moment the money is debited from his account by the bank (Decree of the Federal Antimonopoly Service of the Urals District of August 3, 2011 No. F09-4572 / 11) |
| 3 | expansion by the bank of the list of cases of early repayment of the loan, in particular, by indicating such a possibility in the presence of any violation of the loan agreement by the borrower (Resolution of the Federal Antimonopoly Service of the North-Western District of November 26, 2009 No. A44-2297 / 2009) |
| 4 | establishment of additional obligations to pay fees for opening and maintaining accounts (current bank, loan) and settlement and cash services (recommendations of scientific advisory councils at the Federal Antimonopoly Service of the West Siberian District and the Federal Antimonopoly Service of the Urals District (based on the results of a joint meeting held on April 9-10, 2009 in Yekaterinburg (minutes No. 2 dated June 29, 2009) |
| 5 | charging a fee for issuing certificates on the client's account about the amount of the balance, the amount of debt, etc. |
| 6 | the condition of the loan agreement prohibiting the borrower from acting as a guarantor, pledging his property, obtaining loans from other banks without the written consent of the bank, since it significantly restricts the subjective rights of citizens, and makes them dependent on the will of a third party bank (Decree of the Federal Antimonopoly Service of the East Siberian district dated May 14, 2008 No. A33-12575 / 07-F02-1933 / 08) |
| 7 | condition of the loan agreement on the prohibition of the borrower to repay the loan within a certain time, on the right of the bank to demand early repayment of the loan in case of deterioration financial position the borrower, setting a fine for the borrower's refusal to receive a loan (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 No. 146) |
Summarizing the above, we can draw the following conclusions. The current legislation does not allow to set a condition for the acquisition of some goods (works, services) to necessarily purchase others. This prohibition is universal and applicable not only in the field of consumer and cultural and entertainment services, but also in the field of financial services (bank lending, insurance), equity participation in construction, etc.
It does not matter from whom the imposed service is purchased - from the person with whom the consumer concludes the main contract, or from a third party, since the above prohibition is not restrictive in its content. It is not allowed to include in the contract with the consumer conditions that infringe on his rights in comparison with the way they are defined by the current legislation, to impose any additional obligations on him.
Very often, contracts contain conditions that maximally guarantee the fulfillment of obligations by counterparties. Among them are various security measures, the ability to unilaterally terminate the agreement, etc. At the same time, the own liability of economic entities is minimized and limited. Moreover, in order to maximize profits and increase sales, sellers try to impose additional services. Their implementation is different. For example, the imposition of additional services is carried out within the framework of the main contract. Some sellers put forward a condition according to which the contract is signed only if the accompanying agreements are concluded. Let's take a look at what it says.
Freedom of contract
This principle is provided for by regulations. Acting in accordance with it, sellers associate the receipt of the main service by the client through the acquisition of another, additional one. In some cases, business entities require payment of a fee in excess of that established by the contract. For example, this may be the payment of interest for opening and servicing a loan account, for early repayment of a loan, and so on. All this is the imposition of additional services. The accompanying conditions are set by the sellers unilaterally and are fixed in standard forms. Customers may enter into such agreements solely by joining the services offered as a whole. This significantly limits the freedom of the contract, as it excludes the possibility of counterparties to participate in the creation and establishment of conditions.
Consumer rights Protection
Imposition of services puts customers at a disadvantage. The buyer becomes a weaker participant in the relationship. Accordingly, increased protection of the state is necessary. This, in turn, requires limiting the freedom of contract for the other party. When purchasing services, goods, works to meet domestic needs, the buyer exercises his rights in accordance with the provisions of the Civil Code. In addition, the Federal Law No. 2300-1 also establishes guarantees. What does he say Consumer law? Imposition of services dealt with in Art. 16. It says that the terms of the agreement that infringe on the interests of the buyer, in comparison with the rules provided for by legal acts, are considered invalid. Losses caused by the imposition of services, Article 16 requires the seller (executor, manufacturer) to compensate in full.
Prohibitions
Not allowed service delivery to the consumer for a fee, imposing duties on the client, not provided for by the norms. It is forbidden to condition the purchase of one product on the purchase of another. All this is a violation consumer rights. Imposition of services, among other things, can be carried out and during the period Regulatory acts prohibit linking the satisfaction of the buyer's claims made within the framework of the service period with conditions that are not related to defects in the goods. Often, they are formulated in such a way that the buyer is forced to contact only a specific company, otherwise he will be denied service. The seller is prohibited from carrying out additional work, providing services for a fee without the consent of the client. The buyer may refuse to pay for them. If the amount has already been paid, he has the right to demand a refund.
A responsibility
What threatens for forcing a service? Law on Consumer Protection"indicates the possibility of bringing violators of the norms to justice. In particular, administrative sanctions are provided. For the inclusion in the agreement of conditions that violate the interests of the buyer, a fine is set. It is 1-2 thousand rubles for entrepreneurs, and 10-20 thousand rubles. - for legal entities The relevant provisions are contained in Article 14.8 of the Code of Administrative Offenses.
Timing
If it took place, the buyer may bring the violator to administrative punishment within a year from the date of the violation. The relevant provision is found in Art. 4.5 of the Code of Administrative Offenses (part 1). Imposition of services cannot be considered a continuing violation. It is recognized as completed at the time of the conclusion of the agreement, which contains unacceptable conditions. In case of detection of the fact of infringement of their interests, the buyer can apply to the court. At the same time, it should be taken into account that claims, the amount of which is less than 1 million rubles, are not subject to duty. In addition, the buyer can contact the territorial division of Rospotrebnadzor.
banking practice
Relatively recently, it was very common in the credit sector. In particular, citizens who took a loan could not repay the debt ahead of schedule without paying the so-called "fine". In addition, additional interest was charged for maintaining the account. Currently, they are subject to the signing of an insurance agreement. Can it be considered as? It is worth noting that the opinions of experts on this issue differ.
Inadmissibility of concluding an insurance contract
Experts who are of the opinion that signing for a loan violates the rights of consumers explain their position as follows. The regulations provide for compulsory and voluntary insurance. In this case, the first is allowed only in cases established by law. Repayment of obligations may be secured by a pledge, penalty, surety, and other means. The latter, however, does not mean the possibility of including an insurance contract in the specified list. Some authorities expressly prohibit this. In particular, the Omsk Regional Court, in one of its rulings, pointed out the inadmissibility of linking the conclusion of a loan agreement with the signing of an insurance contract, establishing the right of a banking organization to demand early repayment of an obligation with the payment of interest, and also to foreclose on property pledged as security for non-fulfillment by the client of an accompanying condition . The Federal Antimonopoly Service of the Central District adheres to a similar position. The court points out that if the obligation of the client to insure life is not established by law, then it is impossible to include the corresponding condition in the loan agreement.
Another opinion
A number of experts argue that the inclusion of an additional insurance clause in a loan agreement is acceptable. The main income of the debtor is his salary. Its receipt, in turn, directly depends on the state of his health. risk, respectively, is associated with the provision of loan repayment. This opinion was expressed in one of the cassation rulings by the St. Petersburg City Court. The admissibility of including in the loan agreement a condition on compulsory insurance is directly provided for in the current instructions of the Central Bank. At the same time, in the process of calculating a loan, a banking organization is obliged to take into account the debtor's payments in favor of third parties. These include insurance premiums.
Additionally
Disputes also arise regarding the bank's requirement to conclude an insurance contract with a particular organization. Otherwise, the loan will be denied. The arguments that such a requirement violates the rights of the consumer to the parties to the agreement and leads to an increase in the amount of expenses, links the purchase of one product with the purchase of another, the courts consider unfounded. They explain their findings as follows. To make a decision on issuing a loan, the bank must be sure that in the event of an insured event, the organization will be able to compensate for the losses. If it is not, then the credit institution cannot recognize the obligation as secured. A banking organization is interested in the fact that the debtor is insured by a solvent company.
Explanations
The Federal Antimonopoly Service of the Ural District pointed out that the provisions of clause 2, 16 of Article FZ No. 2300-1 apply to situations where the product is sold by one person. Accordingly, the inclusion of a condition on compulsory insurance is not prohibited. In later decisions, there was a requirement of the bank to significantly restrict the rights of the consumer, making their implementation dependent on the actions of third parties. Two services - insurance and lending - are independent relative to each other, and their imposition is not allowed. The fact that two persons enter into agreements with the customer is of no legal significance for compliance with the regulations. It does not follow from the content of Article 16 that it does not apply in cases where additional services are provided by a third party that has nothing to do with the main contract.
Special situations
A different state of affairs is observed in the case when the consumer had the opportunity to draw up a loan agreement without concluding an insurance contract. AT information letter The Presidium of the Supreme Arbitration Court in paragraph 8 indicates that such a situation is permissible. In the example given in the document, when granting a loan, the bank was guided by the rules developed by it. In accordance with them, insurance was included in the list of measures to minimize the risk of loan default. At the same time, the rules allowed for the provision of a loan even in the absence of an accompanying agreement. However, in this case, an increased rate was set. The bank managed to prove that the difference between the tariffs is not discriminatory. Moreover, the decision of the credit institution to issue funds did not depend on the client's consent to insure his life in favor of the bank. The loan agreement also included a condition that the amount of debt is reduced by the amount of compensation in the event of an accident. The BAC confirmed that the difference between the rates was quite reasonable. In the application, the client chose the option of obtaining a loan with a lower rate, but with a mandatory condition for insurance. After examining the circumstances, the court concluded that there was no imposition of services.
Early repayment of the loan
As mentioned above, the practice of imposing "penalties" for repayment of obligations before the onset of deadline. It is currently cancelled. Regulatory acts allow the repayment of the obligation by the client ahead of schedule, unless otherwise provided by law and does not follow from the essence of the contract. This possibility is provided for in Art. 810 GK. The legislation determines its implementation solely with the consent of the lender, without linking it with the need to pay a commission. According to Art. 393 of the Civil Code, the debtor's property may be levied in case of non-fulfillment or improper fulfillment of contractual conditions, that is, in case of delay. The actions of an entity that repays its obligations ahead of schedule do not apply to a breach of the agreement. Accordingly, they do not entail consequences in the form of the creditor's right to present additional property claims and the debtor's obligations to satisfy them.
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