Content
- 1 Relations arising between CONSUMERS and CONTRACTORS during the performance of work are regulated by the Law of the Russian Federation of 02/07/1992 N 2300-1 “On the Protection of Consumer Rights”.
- 2 If deficiencies are detected in the work performed (service provided), the CONSUMER has the right, at his own discretion, to demand (Clause 1, Article 29 of the Law on the Protection of Consumer Rights):
- 3 In the event that the CONSUMER has complaints about the quality of the purchased product (service provided or work performed), as well as regarding the timing of the work (provision of services), and the seller (performer, etc.) refuses to respond to his oral appeal, the CONSUMER must send a written complaint to the seller (performer, etc.).
- 4 RECIPIENT AND SENDER OF THE CLAIM
- 5 CONTENTS OF THE CLAIM
- 6 DIRECTION OF CLAIM
- 7 Participant contribution:
Letter of complaint about non-compliance with the terms of the contract
When a document is needed
The partner may not fully fulfill the obligations reflected in the agreement or may not fulfill them at all. Then the injured party has the right to go to court. But before that, you need to try to solve the problem in the order in which it was addressed. Before filing a claim, you must write a letter of claim.
Structure of a letter of claim
There are standard requirements for writing a letter; the document must contain:
- Cap - information about the person who violated the contract
- Information of the injured party
- Document's name
- Details of the unfulfilled contract
- List of obligations that have been violated
- Time frame within which violations must be corrected
- Additional data (if necessary)
Important! Claims must be stated clearly; the recipient must understand from the letter, which contains a claim for failure to fulfill the terms of the contract, what he needs to do and by when.
A classic example of a claim letter containing a claim for non-compliance with the terms of the contract
This is important to know: Claim for poor quality services: what you need to know when filing and a sample document
RECIPIENT AND SENDER OF THE CLAIM
The following must be indicated in the header of the claim. 1. To whom the claim is sent - the name of the CONTRACTOR, the address of its location.
Note. The CONTRACTOR's details must be indicated in the contract, check or receipt for the work. The address of the location of the legal entity - CONTRACTOR can be found by the TIN number (or OGRN) on the official website of the Federal Tax Service of Russia.
2. From whom the claim is being sent - full name. CONSUMER, residential address with postal code, contact telephone number.
Example of writing a letter of complaint
Filling out the header of the letter
At the top of the letter you need to indicate the sender, address, and contact phone number. Then you need to indicate the recipient: the name and specifically who the sender is addressing.
After that, the date when the letter was drawn up is indicated, and the document flow number is noted.
Filling out the main part of the claim letter
This section contains a description
- The reason for the claim is indicated; if it is a violation of one of the clauses of the contract or another document, then you need to write a link - enter the date, document number and essence.
- If the conversation is about money, then the instructions are in numbers and in words.
- Next, the claim itself is formulated (each problem is a separate point), and the fulfillment of obligations within the specified period is proposed (also in numbers and words).
- Afterwards, you should inform what actions will be taken by the sender so that the problem is resolved faster (for example, filing an application with the court).
- The letter should be completed with a signature (with a transcript) and the position of the person who signed must be indicated.
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CONTENTS OF THE CLAIM
The content of the claim is not defined by law; therefore, it has an arbitrary form. Requirements must be clearly formulated and concise and, in addition, supported by an indication of the circumstances that were violated (immediate clauses of the contract, specific legal norms). Any claim must have an evidence base. The complaint sets out the essence of the demands being made and indicates the fact of refusal to satisfy the oral demands. The claim must contain a requirement for voluntary satisfaction of the CONSUMER's rights. Otherwise, the CONSUMER reserves the right to go to court and demand, in addition to protecting his right, compensation for material and moral damage.
The text of the claim must consistently reflect the following.
- When, where and for how long the work order was placed. A document confirming the execution of the work order is indicated.
Note!
The CONSUMER’s absence of a cash receipt or sales receipt or other document certifying the fact and conditions of purchase of the goods is not grounds for refusal to satisfy his demands (Clause 5 of Article 18 of the Law on the Protection of Consumer Rights).
- When and what defect of work was discovered, how it manifests itself, or what other violations by the CONTRACTOR of its obligations under the contract were discovered (for example, violation of deadlines for completing work).
- Legal provisions on which the CONSUMER bases his requirements. Depending on the circumstances of the case, the applicant has the right to base his claims on civil law and consumer protection law.
Note. The demands made must be justified and in accordance with the law, for example, Art. Art. 18 or 29 of the Consumer Protection Law. Therefore, in a claim, it is advisable not only to list specific claims to the product (work or service), but also to refer to legal norms that may be the basis for presenting these claims.
- CONTRACTOR'S requirements. For example, refund of funds, free elimination of defects, etc. and the deadline for their execution by the CONTRACTOR.
- The claim must be accompanied by copies of documents confirming the order and payment for work or services - contract, check, receipt, etc.
Note. The total period for fulfilling consumer requirements is 10 days (Clause 1, Article 31 of the Law on the Protection of Consumer Rights).
- Date and personal signature of the consumer.
- The claim must be signed by the applicant.
Nuances of the claim procedure
Risks! If the mandatory pre-trial dispute resolution procedure is not followed, the court will not accept the claim and the documents will be returned to the sender. Because of this, the necessary time will be lost.
If the pre-trial procedure is not necessary, it is still advisable to send the claim. Suddenly the recipient will fulfill the demands made by the sender and the need to go to court will disappear.
If the counterparty refuses to fulfill the requirements, then interest will begin to accrue on late execution.
Recommendation! It is advisable to attach copies of documents that can confirm the sender’s requirements to the letter of claim. What if the recipient does not have them (for example, documents that indicate losses - payments and the like). Then the defendant will not declare during the trial that the plaintiff did not suffer from a breach of contract, since there is no evidence of this.
This is important to know: Application for inclusion of documents in the case materials under the Code of Civil Procedure of the Russian Federation
DIRECTION OF CLAIM
There are several ways to submit a claim to the CONTRACTOR.
- Personal delivery
The claim must be prepared in two copies, taken to the CONTRACTOR and handed over to either the manager or the employee who records incoming correspondence. The copy of the claim remaining with the CONSUMER must be marked with the date of receipt, full name. and the personal signature of the CONTRACTOR employee who accepted the claim, as well as, if possible, the seal of the legal entity. Note! The head of the organization is not personally obliged to accept the claim.
- Mailing
The claim must be sent to the address of the CONTRACTOR's location by registered mail with acknowledgment of receipt. A copy of the claim with an acceptance stamp or the return receipt receipt must be retained as proof of service of the claim. The CONSUMER will need this evidence if the dispute is resolved in court.
Note. The legislation on the protection of consumer rights provides for the obligation of the CONTRACTOR to fulfill the legal requirements of the CONSUMER within a strictly defined time frame from the date of presentation of such requirements. For example, refund - within 10 days, exchange of goods - up to one month, etc. (Articles 18, 19, 21, 23.1 of the Law on Protection of Consumer Rights). Therefore, it is important to prove the date of delivery of the CONSUMER’s demands to the CONTRACTOR in the form of a claim. It is from this date that the deadlines for fulfilling the requirements of the CONSUMER and penalties for the CONTRACTOR will be counted.
Why do you need to file a claim?
Preliminary actions can begin with the presentation of oral claims. If there is no reaction from the counterparty, then a written claim for failure to comply with the terms of the contract is issued. The document must be drawn up in two copies. One of them will be handed to the violating party, the other will be with the plaintiff. On the second copy, the defendant accepting the document must affix a visa with the date of acceptance and the signature of the person who accepted the document. The need for such a procedure is provided for by the fact that this claim will be attached to the judicial statement of claim as a document confirming the failure to fulfill the plaintiff’s demands.
The pre-trial resolution of the issue set out in the claim is determined by the number of demands put forward by the plaintiff and the timing of their fulfillment.
An agreement concluded for the rental of housing or a car is also violated by the tenant or the lessor, which will entail the drawing up of a letter of claim by the injured party. Execution of an agreement with the bank for the provision of services, issuance of credit funds, loans with both individuals and legal entities: OJSC, individual entrepreneur - is also subject to bilateral implementation. The following documents can be used to file a claim:
- employment contract;
- construction contract;
- contract for the supply of provider services;
- cooperation contract;
- agreement for shared participation in construction;
- contract for the sale of goods;
- all types of documents for public services, including heating, electricity, gas, water supply.
This is important to know: Where to complain about the tax office to an individual
How long to wait for a response from the counterparty and what to do if there is no response
The response to the claim must be given within the time period allotted by the contract. Usually it ranges from 10 to 30 days. If this is not indicated in the agreement, the period established by law is adopted - 30 days (Part 2, Article 452 of the Civil Code of the Russian Federation).
The absence of a response does not affect the fact of compliance with the mandatory claim procedure.
After receiving the document, the counterparty can:
- satisfy the requirements in full;
- partially satisfy the requirements;
- ignore the letter.
It is important that the sender can confirm that the claim was delivered or sent. If the document is sent by mail, it is worth sending a letter with acknowledgment of receipt.
These papers will help confirm that the claim procedure has been followed. Then the court accepts the claim and considers the case.
How to file a claim?
In case of non-fulfillment (partial or complete) of the contract, for example: failure to meet deadlines, failure to provide a complete list of goods, or assumption of inconsistency in quality, all violations should be immediately recorded in a pre-trial claim. It is very important to draft this document correctly. If in the future you still have to go to court, the text of the claim under the contract must coincide with the text of the statement of claim. If the document or the method of sending it contains errors, then the pre-trial claim procedure will have to go through again.
Please note: the general statute of limitations is 3 years.
If you do not be active and record your demands in writing, then in the future you will not be able to assert your demands in court.
Documents that must be drawn up in case of violation of contracts due to a pandemic
When concluding an agreement, the parties previously did not attach much importance to individual terms. These include an anti-corruption clause, a confidentiality clause, a force majeure clause and some others.
What to do if, due to the COVID-19 outbreak, your counterparty or you are unable to fulfill your obligations, how to avoid litigation and financial losses , read the article by Ekaterina Usacheva, junior lawyer at MCA Knyazev and Partners.
WHO head Tedros Adhanom Ghebreyesus said that the situation with coronavirus infection can be characterized as a pandemic, and as a result, the state is taking measures at both the federal and regional levels to prevent the spread of the disease. These circumstances affected everyone's life.
Business has not been spared the changes either. For some, the consequences were not significant; others, on the contrary, were able to expand their activities, but most companies faced serious difficulties.
One of the problems was the fulfillment of contractual obligations.
Conventionally, several groups can be distinguished:
1. the changes did not affect the execution of the contract;
2. the performer (tenant, contractor, supplier, etc.) cannot properly fulfill his obligations;
3. the customer (lessor, buyer, etc.) has lost interest in the execution of the contract.
The situation in which the restrictions did not affect the company’s activities is the most favorable, which is why we will not consider it.
Let's take a closer look at other scenarios.
Due to measures taken by the state, a party may not be able to fulfill its obligations or will encounter difficulties in fulfilling them.
For example:
- the supplier may not have the necessary equipment due to customs restrictions;
- the contractor violates the deadlines for completing work due to the fact that workers cannot work as usual;
- the tenant of a restaurant (beauty salon without a license and other prohibited activities) will not be able to pay the rent in full and on time due to the suspension of activities;
- the event organizer will not need the stand and equipment that he ordered for the event, which is now canceled and other situations, of which a huge number may arise.
In such cases, it is necessary to determine what happened: a business risk or force majeure .
There is a fine line between the concepts , which should be objectively assessed in order to develop tactics for further actions.
In such a situation, clarification may be helpful. For example, the Chamber of Commerce and Industry provided answers to frequently asked questions.
In their opinion, the introduction of bans on holding events can be considered as a force majeure event for exhibitionists and other organizers of events held with the participation of a large number of citizens[1].
Also, the Chamber of Commerce and Industry, taking into account the extreme situation that has arisen due to the coronavirus pandemic, instructed the Chambers of Commerce and Industry of the constituent entities of the Russian Federation to issue, if there are sufficient grounds, certificates of force majeure under contracts concluded between Russian business entities, which can be used as evidence[2].
After determining what caused the difficulties, it is necessary to choose the path along which the legal justification of the position will be built, as well as what results would like to be achieved:
1. If the provisions on force majeure apply to you, then you can refer to clause 3 of Article 401 of the Civil Code of the Russian Federation. This article can be used in conjunction with others, and can also be used when sending a notification for informational purposes, for the possibility of exemption from sanctions for failure to fulfill obligations.
2. If you wish to terminate your obligations, you can refer to Articles 416, 417, 451 of the Civil Code of the Russian Federation, confirming their applicability with specific facts and evidence (for example, referring to specific Decrees of the Mayor of Moscow, which introduced restrictions).
Indicating Article 407 of the Civil Code of the Russian Federation, invite the counterparty to terminate the contract by agreement of the parties on the proposed terms.
3. If the task is to change the terms of the Agreement, incl. by suspending its action, then this can be justified by Articles 450, 451 of the Civil Code of the Russian Federation.
Additionally, you can refer to legal norms governing certain types of legal relations. For example, according to Article 614 of the Civil Code of the Russian Federation in rental relations.
In addition, to substantiate the position, it is necessary to take into account the agreements of the parties. To do this, analyze the terms of the contract regarding force majeure circumstances, the procedure for terminating and amending the contract.
If a special procedure is established there, then it is necessary to adhere to it, referring not only to the norms of the law, but also to the contract.
Once the position and stated requirements are determined, a notification is sent.
The notification must clearly state the factual circumstances reflecting the cause-and-effect relationship between the spread of coronavirus , the restrictions imposed and the consequences for the fulfillment of a specific obligation.
Along with the notification, an additional agreement or an agreement to terminate the contract may be sent for signing.
Having received such notice, the other party must also be aware of the legal consequences.
There are unscrupulous counterparties who are trying to take advantage of the situation and unreasonably obtain additional benefits, citing force majeure circumstances.
For this reason, the person receiving such notice should also evaluate the situation from the point of view of the applicability of force majeure provisions to it, check the substantiation of causation, as well as the applicant’s compliance with the requirements of the contract.
To express your position, we recommend preparing a reasoned response in writing.
In such a response, it is possible to acknowledge the occurrence of force majeure or object to it, and the party can also accept the counterparty’s proposal to change or terminate the contract.
If the options proposed by the party are not satisfactory, then negotiations can begin in correspondence.
Each participant in legal relations must understand that bringing a dispute to court is the most unfavorable scenario for the development of events.
Therefore, during discussions, adhere to the win-win concept, which will only strengthen your contractual relationship and allow you to continue cooperation on a long-term basis.
In this regard, we have prepared a diagram for readers of klerk.ru - an algorithm of actions in the event of impossibility of fulfilling contractual obligations. In addition, our lawyers have developed document templates that will help you legally formalize the agreements reached.
These and other templates can be downloaded here.
[1]https://mostpp.ru/news/deyatelnost-mtpp/fors-mazhor-iz-za-koronavirusa-voprosy-i-otvety/?fbclid=IwAR01l4acxIZ1xWzNWewxhHV_gQyi5EcpO_uyzcGaUiHmoWfcx00-PaU1jgE
[2] Information from the Chamber of Commerce and Industry of the Russian Federation dated March 24, 2020. “A meeting was held in the videoconferencing mode to explain the procedure for issuing conclusions on force majeure circumstances.”
Claim for non-fulfillment of contract terms: when is it necessary to file it?
A claim for non-fulfillment of the terms of the contract is a document containing the claims of one party to the other, arising as a result of the latter’s failure to fulfill the terms of the contract concluded between them. A sample claim for violation of the terms of a contract is a popular form in legal practice, i.e.
allows you to quickly draw up a letter of claim and either collect the debt or prepare the ground for further filing a claim.
At the legislative level, cases of mandatory filing of a claim are defined:
Expert opinion
Lebedev Oleg Tarasovich
Lawyer with 7 years of experience. Specialization: family law. Extensive experience in defense in court.
It is necessary as a general rule for monetary claims (according to the provisions of paragraph 5 of Article 4, Articles 125, 126 of the Arbitration Procedure Code of the Russian Federation). Sent when filing a claim.
Generally not necessary
Exceptions - no claim procedure required
Exceptions - a claim procedure is required
Ch. 27, 27.1, 28, 28.1, 28.2, 30 Arbitration Procedure Code of the Russian Federation
If required by a special law or agreement (for example, Article 41 of the Charter of Road Transport and Urban Ground Electric Transport). The claim is sent before filing a statement of claim
