Risk of accidental death under a supply contract. Risk of accidental death

Risk accidental death goods And risk of accidental damage to the goods

At what point does the risk of accidental loss or accidental damage to the goods pass to the buyer?

The moment of handing over the thing has important in the purchase and sale agreement. The risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer. Until this moment, all risks associated with accidental loss or damage to the goods lie with the owner of the goods, i.e. on the seller.

Article 211 of the Civil Code of the Russian Federation — Risk of accidental loss of property— “The risk of accidental death or accidental damage to property is borne by its owner, unless otherwise provided by law or contract. "

Article 459 of the Civil Code of the Russian Federation — Transfer of risk of accidental loss of goods- "1. Unless otherwise provided by the purchase and sale agreement, the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer. » [ full text articles]

Therefore, in this situation it is necessary to determine who was the owner of the goods at the time of its damage or destruction - buyer or shop.

The form of the retail purchase and sale agreement in this case will be a check (or other document confirming payment for the goods).

Article 493 of the Civil Code of the Russian Federation — Retail sales agreement form“: “Unless otherwise provided by law or the retail purchase and sale agreement, including the terms of the forms or other standard forms to which the buyer joins (Article 428), the retail purchase and sale agreement is considered concluded in the proper form from the moment the seller issues the cash receipt to the buyer or a sales receipt or other document confirming payment for the goods. The buyer’s absence of these documents does not deprive him of the opportunity to refer to witness testimony in support of the conclusion of the contract and its terms.”

IMPORTANT! Until the buyer pays for the goods and receives a receipt for the goods from the seller, the owner of the goods is the store, and in this situation the store will be responsible for the risk of accidental loss of the goods. The goods become the property of the buyer after payment and receipt of the receipt - that is, at the checkout line.

Is the buyer obliged to pay for goods accidentally broken or damaged in the store?

THE BUYER IS NOT OBLIGED TO PAY FOR ACCIDENTALLY ITEM BROKEN IN THE STORE

There is only one legal way to force a buyer to pay for a broken product — V judicial procedure — the store must prove that the buyer caused the damage intentionally. If the seller accuses you of such intent, remind him that all this still needs to be proven in court. The main thing is that the buyer should insist that the product was inconvenient and the buyer dropped the product by accident. Even if the case goes to court, it will be almost impossible to prove your malicious intent to the store. It should also be noted that the store is unlikely to want to get involved in a legal battle.

THE STORE ADMINISTRATION DOES NOT HAVE THE RIGHT TO DEMAND PAYMENT BY THE BUYER FOR ACCIDENTALLY DAMAGED GOODS

Demand reimbursement of the cost of damaged goods from the buyer the store can either voluntarily, or in court. If the buyer believes that the goods were damaged as a result of his culpable actions, the buyer can compensate for the damage voluntarily. However, if the buyer does not consider himself guilty - force the buyer to compensate for the damage caused The store administration has no right. Such pressure on the buyer is unacceptable.

If the buyer does NOT admit his guilt and refuses to reimburse the cost of the damaged goods, the store administration can recover the cost of the damaged goods only in court.

[! ] Code of administrative offenses(Administrative Code of the Russian Federation) provides for liability for the intentional destruction and damage of someone else's property.

Article 7.17. Code of Administrative Offenses of the Russian Federation « Destruction or damage to someone else's property“: “Intentional destruction or damage to someone else’s property, if these actions did not cause significant damage, entails the imposition of administrative fine in the amount of three hundred to five hundred rubles. "

Let's look at the cases when the buyer is guilty, and when the store is guilty.

The buyer is at fault
- if you picked up the product and carelessly dropped it and broke it;
- if your “unnatural” behavior on the sales floor (running, fighting, being in a state of alcohol intoxication and so on.);
- if you deliberately broke this or that product (for example, you picked up a bottle of expensive whiskey and, with the words “here you go, bourgeois,” threw the bottle against the wall with all your might);
In these cases, you caused damage to the store through your fault and are obliged to compensate it in full; After payment, this product becomes your property.

The store is to blame
- if the sales floor has narrow aisles that do not meet the standards, or these aisles are filled with boxes, “slides” of goods;
- if the product is located unstable on the rack, and by taking one can, you have destroyed “the entire structure”;
— if the store floor is wet and you damage the goods by slipping;
— if the product breaks, falling from the belt at the checkout;
In these cases, the fault lies entirely with the store, and no one has the right to demand compensation from you.

If - The store administration requires the buyer to pay for the damaged goods- [Is it legal to demand payment from the buyer for an accidentally damaged product] - damaged NOT through the fault of the buyer - ask for a book of reviews and suggestions, and leave a detailed note about what happened in the review book. Try to enlist the support of at least two witnesses to what happened (this could be your relatives and friends, as well as other customers of the store) - get their phone number. Inform the store employees that: at the moment - here and now - you do not intend to pay the cost of the damaged goods, and if the store administration considers you guilty of intentionally causing harm, it can go to court with a claim for damages. You have every right to do this. In 99% of cases, the incident will be resolved and no one will sue the buyer, because not a single representative of the administration will want to subject the store to additional checks, which will reveal that the distance between the rows is indeed less than established by law. The fine in this case will be much greater than the cost of the goods damaged by the buyer.

It is also worth knowing and remembering - Clause 22 of the Decree of the Government of the Russian Federation of July 8, 1997 No. 828“On approval of the Regulations on the citizen’s passport Russian Federation, sample form and description of a passport of a citizen of the Russian Federation": » It is prohibited to confiscate a citizen’s passport, except in cases provided for by the legislation of the Russian Federation.", i.e. a store employee or security guard does not have the right to demand that a citizen’s passport be handed over to him, or to confiscate a citizen’s passport. Under no circumstances give your passport to a store representative - he may try to take the buyer’s passport as collateral - in violation of the requirements of the legislation of the Russian Federation. This is unacceptable; you can dictate passport data without showing the passport itself to anyone; but you don't have to do that either, Only police officers can demand documents, but not a seller or a security guard.

If the store security guard does not let you out until you pay the cost of the damaged goods (and he has the right to do so - you have encroached on someone else’s property), remind him of the existence of Article 203 of the Criminal Code of the Russian Federation, which provides for punishment in the form of imprisonment for a term of up to seven years for abuse of power by employees of private security companies. The security officer must stop you politely and carefully. If he acts rudely, then Article 203 of the Criminal Code of the Russian Federation is just about him. Politely inform the security guard that you are ready to compensate for the damage, but only after your guilt has been proven in court.

In case of unlawful actions on the part of store employees - if you are sure that you are right and innocent - feel free to call the police.

Civil law. Test 1

1. Determine the legal nature of the purchase and sale agreement:

in favor of a third party

2. The risk of accidental loss or damage to the subject of the purchase and sale agreement passes to the buyer from the moment
fulfillment by the buyer of the obligation to pay for the goods
transfer of ownership of the goods to the buyer
fulfillment by the seller of the obligation to transfer the goods to the buyer
concluding a purchase and sale agreement
use of the goods by the buyer

3. Under a retail purchase and sale agreement, the goods are transferred to the buyer for
state needs
use in business activities
subsequent sale
personal, home, family or other non-related use entrepreneurial activity
use for other purposes not related to personal, home, family and other similar use

4. The buyer has the right to exchange a non-food product of proper quality at the place of purchase from the moment the goods are transferred to him within
fourteen days
thirty days
six months
one year
none of the above options

5. The contract for the purchase and sale of real estate is considered concluded from the moment
signing of the contract by the parties
transfer to the buyer of property provided for in the contract
payment of the cost of the transferred property
notarization of the contract
state registration transfer of ownership

6. Products that are not installed warranty periods, if defects are found in them, they can be returned by the buyer to the seller within
7 days
10 days
14 days excluding the day of purchase
14 days counting the day of purchase
30 days

7. Ownership of the enterprise passes to the buyer from the moment
signing by the parties of the agreement
signing of the transfer deed by the parties
registration of the agreement
state registration of the said right
payment of the cost of the enterprise

8. The composition and cost of the enterprise being sold are determined in the agreement for the sale of the enterprise on the basis
enterprise inventory
audit of the enterprise
deed of transfer
size of the enterprise's authorized capital
property complex of the enterprise

9. The supply contract is characterized as
real, one-sided, compensated
consensual, paid, bilateral
consensual, unilateral, compensated
real, two-way, compensated
consensual, bilateral, gratuitous

10. The supply contract is concluded in
simple writing
written notarial form
orally
both orally and in writing
in writing and is subject to state registration

11. The legal result of the fulfillment of obligations under the supply contract is the transfer from the supplier to the buyer
rights to use acquired property
ownership rights to acquired property
rights of ownership and use of acquired property
ownership rights to acquired property
other property rights

12. If defects are detected in the delivered goods for which warranty periods are established, the buyer has the right to demand from the supplier
free elimination of product defects
renegotiation of the contract
double delivery of goods
double damages
early execution of the contract

13. In the event of delivery to the buyer, along with goods whose assortment complies with the contract, goods in violation of the terms of assortment, the buyer has the right to choose
accept goods that comply with the terms of the assortment agreement and refuse the rest of the goods
refuse all transferred goods (but accept for safekeeping)
demand that goods that do not comply with the terms of the assortment agreement be replaced with goods in the assortment stipulated by the agreement
accept all transferred goods
all the options listed

14. Unilateral refusal of the supplier to fulfill the supply agreement
not allowed
allowed in case repeated violation terms of payment for goods
allowed in case of one-time non-sampling of goods
allowed in case of a single violation of the terms of acceptance of goods by the buyer
allowed in the cases specified in paragraphs “c” and “d”

15. Payment for goods under a supply contract for government needs is carried out
buyer
V mandatory government customer
state customer, and the buyer is recognized as a guarantor for this obligation of the state customer
the buyer, and state customer is recognized as a guarantor for this obligation of the buyer
both the buyer and the government customer

Accounting in trade 1998’3

Transfer of risk of accidental loss of property: legal regulation and accounting

The transfer of ownership of property is associated with certain legal consequences, in particular, at this moment per buyer general rule(unless otherwise provided by law or contract) there is a risk of accidental loss of property. This circumstance will be the subject of consideration in this article.

It is necessary to distinguish between the concepts of “transfer of property” and “fulfillment of the obligation to transfer property”.

If the contract provides for the seller’s obligation to deliver the goods, delivery is considered to be the delivery of the goods to the buyer or the person indicated by him; if the contract provides for the provision of the transfer of goods to the buyer at the place where it (the goods) is located (pickup), the transfer is the provision of the goods at the disposal of the buyer, that is, its readiness for transfer and informing the buyer of its readiness; If the contract does not contain a provision for delivery or collection of goods, the delivery of the item is considered to be the delivery of the goods to the carrier or the organization of communication for delivery to the buyer.

In relation to purchase and sale agreements, the following applies: special rule, established in Art. 458 of the Civil Code of the Russian Federation, which determines the moment of fulfillment of the obligation to transfer the thing.

Legal basis for transferring the risk of accidental loss of property

As a general rule, the ownership right of the acquirer of a thing under a contract arises from the moment of its transfer (Clause 1 of Article 223 of the Civil Code of the Russian Federation). However, the same paragraph states that the parties themselves have the right to determine the moment when the acquirer acquires the right of ownership of the property. Thus, the contract may indicate that ownership passes to the acquirer from the moment the contract is signed, from the moment the thing is manufactured, if it is yet to be created, etc. The transfer of a thing is the delivery of the thing to the acquirer, as well as delivery to the carrier for shipment to the acquirer or delivery to a communications organization for forwarding to the acquirer of things alienated without the obligation of delivery (Article 224 of the Civil Code of the Russian Federation).

The Civil Code (Article 459) connects the fulfillment of the obligation to transfer a thing with the transfer of the risk of accidental loss of a thing transferred under a sales contract. In contrast to the rule on the transfer of a thing, the rules on the fulfillment of the obligation to transfer and on the transfer of the risk of accidental death can be changed by agreement of the parties.

The legislation does not disclose what constitutes circumstances of accidental death. In Art. 211 of the Civil Code of the Russian Federation only states that “the risk of accidental death or accidental damage to property is borne by its owner, unless otherwise provided by law or contract.” In the comments to this article, fire, flood, earthquake, etc. are mentioned as such circumstances; it is stated that “a risk occurs when there are no subjective grounds for assigning responsibility for loss or damage to property to third parties.”

Thus, cases of theft or intentional damage to property cannot be considered as circumstances of accidental death. Also, such circumstances do not include cases where the property was destroyed as a result of natural phenomena (snow, hail, etc.), if the owner did not accept necessary measures for the safety of this property.

One more note. Article 138 of the Civil Code of the RSFSR of 1964 contained a rule according to which “if the alienator is late in transferring things or the acquirer is late in accepting them, the risk of accidental loss or accidental damage is borne by the delayed party.” In the current Civil Code of 1994 this norm formulated in a more general version and states that “a debtor who is late in performance is liable to the creditor for losses caused by the delay and for the consequences of the impossibility of performance that accidentally occurred during the delay” (clause 1 of Article 405 of the Civil Code of the Russian Federation). Thus, this provision is not excluded from the legislation, but is separated from the rule on bearing the risk of accidental death.

An agreement for the sale and purchase of products has been concluded between organizations A and B, under which A acts as the seller and B as the buyer. The contract stipulates that ownership of the goods passes to B from the moment the contract is signed and until the actual transfer is in the warehouse of A. As a result of a lightning strike, a fire broke out in the warehouse and a batch of goods intended for transfer to B burned down. The risk of accidental loss of this batch of goods has already passed to B, therefore B is not released from the obligation to pay the purchase price of the goods.

A clearly unfavorable situation arose for B, although, when signing the agreement, he should have been aware of the risk he was taking in connection with a more early transfer of ownership compared to established by law. But an even more paradoxical situation is possible, which will also be useful to illustrate.

Let us assume that the contract between the same organizations A and B includes a condition on sampling (pickup) of goods. This agreement does not contain any special clauses regarding the moment of transfer of ownership or the risk of accidental death.

The risk of accidental loss of property in this case passes to the buyer from the moment the goods are placed at his disposal. However, in any case, some time will pass from the moment of notification to the actual removal. There is no legislatively defined period for sampling, during which the property is not considered transferred; from the moment the notification is received, the transfer is considered completed. It turns out that the legislation provides for the possibility of a situation in which the buyer will be obliged to pay the agreed price for a product that was not received real possibility. And if in the first example the buyer, by signing the contract, consciously takes on this risk, then in the second the general rule established by the Civil Code of the Russian Federation simply applies.

A rather difficult situation arises from the point of view of civil law. But, leaving this side of the issue, we should consider how these transactions will be reflected in the accounting records of the seller and the buyer.

Reflection in accounting for the transfer of the risk of accidental loss of property

Features of reflection in accounting business transactions, associated with the transfer of the risk of accidental loss of property, consist primarily in the fact that the multivariance of determining the moment of transfer of ownership of the goods is opposed uniform order accounting for sales of products (works, services). In accordance with the Instructions for using the chart of accounts accounting, approved by order of the Ministry of Finance of the USSR dated November 1, 1991 No. 56, “enterprises, as they present payment documents to buyers (customers) for products shipped, work performed and services rendered, reflect the amount for which buyers (customers) were presented settlement documents, on the credit of account 46 “Sales of products (works, services)” and the debit of account 62 “Settlements with buyers and customers”. Thus, the basis for reflecting the sale in accounting is the presentation of settlement documents to the buyer, which may not coincide with the moment of transfer of ownership of the property. This can be clarified using the examples given.

In example 1, until the moment of shipment and issuance of payment documents to B (buyer), no changes occur in the accounting records of A, while the latter’s rights to this batch of goods have undergone a significant change. As stated above, accidental destruction of property does not relieve B from the obligation to pay for the goods. Therefore, based on the settlement documents issued by organization A, organization B must make a payment. The following entries are made in accounting A:

1.1 Dt count. 62 — Set count. 46 payment documents were presented for payment;
1.2 D-t count. 46 — Set count. 68 value added tax was charged;
1.3 Dt count. 46 — Set count. 41 goods that have become the property of the buyer are written off;
1.4 D-t count. 51 — Set count. 62 payment arrived to the bank account.

If property is lost, A must take an inventory. In accordance with clause 17 of the Regulations on Accounting and Reporting in the Russian Federation, approved by Order of the Ministry of Finance of the Russian Federation dated December 26, 1994 No. 170, inventory is mandatory, in particular in the case natural Disasters, fire, accidents or other emergency situations caused by extreme conditions. The inventory is regulated by Order of the Ministry of Finance of the Russian Federation dated June 13, 1995 No. 49 “On approval methodological recommendations on inventory of property and financial obligations.”

Based on the inventory data, an act of destruction of the goods to be transferred to B is drawn up. This act must be signed by a representative of the latter. The specified act is drawn up in two copies, one of which is transferred to representative B, and the other remains with A. Based on the inventory data and the act of destruction of property, A writes off the goods from account 41 “Goods”, and B makes payment.

Thus, in accounting A, the standard correspondence of accounts for implementation was carried out. The only basis for writing off goods from account 41 is not the invoice, but the results of the inventory and the act of destruction of the goods.

The question of the procedure for the buyer (B) to write off at a loss the amounts paid to the seller (A) for the goods is controversial.

Theoretically, the most correct is to reflect the goods on account 41 on the basis of the contract. Then the following entries will be made in the buyer’s accounting:

2.1 D-t count. 41 — Set count. 60 goods were registered;
2.2 D-t count. 60 — Set count. 51 for the amount of payment to the supplier;
2.3 D-t count. 80 — Set count. 41 destroyed goods were written off.

Since the registration and deregistration of goods occur almost simultaneously, in practice an entry to account 41 is not made. In this case, the correspondence of the accounting accounts will be as follows:

3.1 Dt count. 60 — Set count. 51 for the amount of payment to the supplier;
3.2 D-t count. 80 — Set count. 60 the loss from the destruction of goods is written off.

The specified system of records arises if the buyer does not dispute his obligation to pay for the goods. If he refuses to pay before the relevant decision is made arbitration court B's accounting does not undergo any changes, and A makes entries 1.1 - 1.3. It should be borne in mind that filing a claim against B in this case is not the basis for using account 63 “Calculations for claims” in A’s accounting, since this claim is not recognized by the buyer.

In paragraph 1 of Art. 1 Law of the Russian Federation dated November 21, 1996 No. 129-FZ “On Accounting” accounting is defined as “an orderly system of collecting, registering and summarizing information in monetary terms about the property, obligations of organizations and their movement through continuous, continuous and documentary accounting all business transactions." When in example 1 the goods are not reflected in account 41, the obligations of A associated with the transfer of ownership of the goods are not reflected in the accounting records in the period from the moment of transfer of ownership until the receipt of information about the destruction of the goods. Consequently, it is impossible to obtain from accounting records during this period of time full information about the entire set of obligations of organization B.

The reasons for the incompleteness of information lie in the fact that the contract, being one of the grounds for the emergence of obligations (subclause 1, clause 1, article 8 of the Civil Code of the Russian Federation), is not recognized as primary document accounting, but, from our point of view, only the study of the contractual work of the enterprise, along with the analysis of its accounting registers, can somewhat fill these gaps.

The amounts on line 3, columns 3 and 4 are revenue from sales excluding VAT and other taxes, reflected in account 46, for shipment and payment, respectively.

The amounts on lines 3, 4, 5, column 5 are indicators of lines 010, 020, 050 of reporting form 2 “Profit and Loss Statement”.

On line 5, column 6, we receive profit from sales on payment, which is taken into account for tax purposes.

The final amount of profit for tax purposes must include non-operating income and expenses that do not depend on accounting policies.

The difference in the amounts of columns 6 and 5 on lines 3 and 4 is reflected in lines 2.1 “a” and 2.1 “b” of the certificate for calculating income tax (Appendix 11 to Instruction of the State Tax Service of the Russian Federation No. 37).

The difference in the amounts on lines 3 and 4.2 in columns 3, 4, 5 and 6 is the gross income in trade for shipment and payment, respectively.

The amount in line 4.2 of column 7 should be included in the calculation of costs for the balance of unsold goods in trade along with the balance of account 41.

The form should be maintained for each type of activity if separate accounting is organized for them. Also similar form can be used to account for sales in accounting accounts 47 and 48 (operating income and expenses).

For questions and suggestions, please contact [email protected]

The moment the buyer acquires ownership rights. Risk of accidental loss of an item

The moment of ownership of the buyer

The purpose of a contract of sale is to transfer ownership of the thing serving as a commodity to the buyer.

As a general rule, the ownership right of the acquirer of a thing under a contract arises from the moment of its transfer (and not from the moment of conclusion of the contract, which characterizes the “system of tradition” adopted by domestic legislation), unless otherwise provided by law or contract.

In cases where the alienation of property is subject to state registration, the acquirer's right of ownership arises from the moment of such registration, unless otherwise established by law (Article 223 of the Civil Code).

In relations of purchase and sale of state registration, the transfer of ownership is subject to:

· on real estate(Article 551 of the Civil Code);

· to an enterprise as a property complex (Article 564 of the Civil Code);

· for residential buildings, apartments and other residential premises (Article 558 of the Civil Code).

In cases of sale of enterprises and residential premises, concluded sales and purchase agreements are also subject to state registration.

The parties may enter into an agreement with the condition that the seller retains ownership of the goods transferred to the buyer until payment for the goods or the occurrence of other certain circumstances. In this case, the seller, remaining the owner of the goods, if the buyer fails to pay for the goods on time or other provided for by the agreement circumstances under which ownership passes to the buyer, he has the right to demand that the buyer return the goods transferred to him (Article 491 of the Civil Code).

Risk of accidental loss of an item

The risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law or contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer.

However, in cases where the goods are sold while they are in transit (in particular, by transfer of a bill of lading or other documents of title to the goods), the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment the purchase and sale agreement is concluded, unless otherwise provided for by the contract itself or business customs (clause 2 of Article 459 of the Civil Code).

Article 459 of the Civil Code of the Russian Federation. Transfer of risk of accidental loss of goods

1. Unless otherwise provided by the purchase and sale agreement, the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer.

2. The risk of accidental loss or accidental damage to goods sold while in transit passes to the buyer from the moment the purchase and sale agreement is concluded, unless otherwise provided by such agreement or business customs.

The provision of the contract that the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment the goods are handed over to the first carrier, at the request of the buyer may be declared invalid by the court if at the time of concluding the contract the seller knew or should have known that the goods were lost or damaged, and did not inform the buyer about this.

Examples of practice - court decisions under Article 459 of the Civil Code of the Russian Federation:

M-1223/2018 (06/04/2018, Stavropol district court (Samara region))
Decision in case 2-1300/2018

M-878/2018 (06/01/2018, Stavropol district court (Samara region))
Decision in case 2-1301/2018

M-879/2018 (06/01/2018, Stavropol district court (Samara region))
Decision in case 2-1471/2018

M-1092/2018 (05/25/2018, Stavropol district court (Samara region))
Decision in case 2-1232/2018

M-810/2018 (05/23/2018, Stavropol district court (Samara region))
Decision in case 12-33/2018 (05/21/2018, Chekhov City Court (Moscow region))
Decision in case 2-1008/2018

M-1901/2017 (04/24/2018, Dzerzhinsky District Court of Yaroslavl ( Yaroslavl region))
Decision in case 2-1258/2018

M-839/2018 (04/20/2018, Stavropol district court (Samara region))
Decision in case 2-643/2018

M-227/2018 (04/18/2018, Stavropol district court (Samara region))
Decision in case 2-1202/2018

M-819/2018 (04/17/2018, Leninsky District Court of Ulyanovsk (Ulyanovsk Region))
Decision in case 2-1244/2018

M-693/2018 (04/13/2018, Oktyabrsky District Court of Stavropol ( Stavropol region))
Decision in case 33-3821/2018 (04/11/2018, Perm Regional Court (Perm Territory))
Decision in case 33-1363/2018 (04/11/2018, Supreme Court Republic of Sakha (Yakutia) (Republic of Sakha (Yakutia)))
Decision in case 2-142/2018 (04/09/2018, Judicial precinct of the magistrate No. 1 of Novosibirsk, Sovetsky district)
Decision in case 2-603/2018

M-256/2018 (04/05/2018, Demsky District Court of Ufa (Republic of Bashkortostan))
Decision in case 2-1016/2018

M-616/2018 (04/04/2018, Stavropol district court (Samara region))
Decision in case 33-4224/2018 (04/02/2018, Krasnoyarsk Regional Court (Krasnoyarsk Territory))
Decision in case 11-20/2018 (04/02/2018, Sovetsky District Court of Orsk (Orenburg Region))
Decision in case 33-785/2018 (03/29/2018, Kursk Regional Court (Kursk region))
Decision in case 2-570/2018

M-131/2018 (03/29/2018, Stavropol district court (Samara region))
Decision in case 33-1895/2018 (03/28/2018, Omsk Regional Court (Omsk region))
Decision in case 2-829/2018

M-389/2018 (03/28/2018, Stavropol district court (Samara region))
Decision in case 2-1235/2018 (03/22/2018, Industrial District Court of Perm (Perm Territory))
Decision in case 12-98/2018 (03/20/2018, Zavolzhsky district court of Ulyanovsk (Ulyanovsk region))
Decision in case 2-696/2018

M-260/2018 (03/20/2018, Stavropol district court (Samara region))
Decision in case 2-47/2018

M-28/2018 (03/06/2018, Rubtsovsky District Court ( Altai region))
Decision in case 2-568/2018

M-2024/2017 (03/01/2018, Michurinsky City Court ( Tambov Region))
Decision in case 2-481/2018

M-16/2018 (02/28/2018, Stavropol district court (Samara region))
Decision in case 2-566/2018

M-1136/2017 (02/19/2018, Chernushinsky district court (Perm region))
Decision in case 2-572/2018

M-950/2017 (02/16/2018, Maykop District Court (Republic of Adygea))
Decision in case 2-282/2018

M-83/2018 (02/12/2018, Bugulma City Court (Republic of Tatarstan))
Decision in case 2-1386/2018 (01/31/2018, Sovetsky District Court of Lipetsk ( Lipetsk region))
Decision in case 2-33/2018 (2-4824/2017;)

M-3367/2017 (01/25/2018, Balakovsky district court (Saratov region))
Decision in case 11-6/2018 (11-114/2017;) (01/11/2018, Kirovo-Chepetsky District Court (Kirov region))
Decision in case 2-287/2018 (2-2034/2017;)

M-2024/2017 (01/10/2018, Michurinsky City Court (Tambov Region))
Decision in case 33-27252/2017 (December 28, 2017, Supreme Court of the Republic of Bashkortostan (Republic of Bashkortostan))
Decision in case 2-3153/2017

M-2790/2017 (12/22/2017, Stavropol district court (Samara region))
Decision in case 2-2931/2017

M-2561/2017 (December 21, 2017, Stavropol District Court (Samara Region))
Decision in case 33-14934/2017 (12/14/2017, Samara Regional Court (Samara Region))
Decision in case 2-3061/2017

M-2707/2017 (12/13/2017, Stavropol district court (Samara region))
Decision in case 2-2856/2017

M-2480/2017 (12/13/2017, Stavropol district court (Samara region))
Decision in case 33-15214/2017 (12/13/2017, Samara Regional Court (Samara Region))
Decision in case 33-4192/2017 (12.12.2017, Penza Regional Court (Penza Region))

Commentary on Article 459 of the Civil Code of the Russian Federation

1. In relation to a purchase and sale agreement, risk is recognized as loss or damage to the goods sold that occurred for reasons beyond the control of the seller and buyer due to circumstances for which they, in accordance with current legislation they don't answer.

Losses of goods during transportation associated with the properties of the goods (glass, vegetables, etc.), its conditions (for example, transportation of bulk goods - soil, gravel, etc. - in open vehicles) and the duration of transportation are recognized in practice as a type accidental loss or damage to the goods. Previously, the norms for such losses (natural loss) of specific types of goods were determined government agencies logistics and trade management. When concluding a contract, the parties may stipulate the application of these norms or agree on other norms of natural loss. As a general rule, such losses are attributed to the owner. However, the contract may agree on a different distribution between the parties of losses caused by the natural loss of goods during transportation.

2. The transfer of the risk of accidental loss or accidental damage to the goods depends on the moment the seller fulfills the obligation to transfer the goods. As a general rule, the risk passes to the buyer from the moment when, in accordance with the law or contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer (see commentary to Article 458). Other rules on the transfer of risk may be provided for in the contract.

3. Determining the moment of risk transfer is of particular importance when the contract provides for the delivery of goods to the buyer at his place of residence (location) or another place specified by him or the provision of goods at the place of his location at the disposal of the buyer. In these cases, two situations are possible, depending on which the moment of risk transfer will be determined.

If the buyer accepts the goods delivered or placed at his disposal in accordance with the terms of the contract, the risk passes to him from the moment the goods are delivered.

In case of violation by the buyer of the contract (for example, delay in accepting the goods) or refusal without legal grounds to accept the goods, the risk of accidental loss passes to the buyer from the moment of delivery of the goods or from the moment when the goods are considered to be placed at his disposal (see commentary to Art. 458).

Goods not accepted by the buyer on legally, remains in the possession of the seller, who bears the risk of its accidental loss or damage.

4. Paragraph 2 of the commented article establishes the rule for the transfer of the risk of accidental loss of goods sold while they are in transit. The need to sell such goods may arise when its transportation continues long time, for example by sea or in mixed traffic.

5. The moment of transfer of ownership of the goods to the buyer is determined according to the general rules provided for in Art. 223 Civil Code.

The risk of accidental loss or accidental damage to property is borne by its owner, unless otherwise provided by law or contract.

Commentary to Art. 211 Civil Code of the Russian Federation

1. The destruction of property means the destruction (disappearance) of the corresponding object civil rights. Damage to property in this case should be understood quite broadly. This refers to both actual damage as a result of mechanical or other impact on a thing, and damage as a consequence of certain organic processes.

2. The destruction of property is considered accidental, damage to property is considered accidental if the incident is no one’s fault. Consequently, there are no persons from whom it was possible to recover the value of lost or damaged property. Adverse property consequences are borne by the owner. He can come to terms with what happened, can take actions aimed at restoring lost property, repairing damaged property, etc. But he cannot demand anything from anyone, since no one is guilty of the loss or damage to property and, therefore, no one can be held accountable. This is the general rule (exceptions below).

The rule in question applies if a simple case (incident) has occurred (sometimes called a subjective case) - there is loss or damage to property, but there is no one to blame for it. It also applies if an emergency and unavoidable circumstance under the given conditions has occurred (force majeure, sometimes called an objective case).

3. The law or contract may provide that the risk of accidental loss or accidental damage to property is borne not by the owner, but by other persons (another person). There are many such cases. Some rules in this regard are imperative (do not allow otherwise to be established by agreement of the parties), others are dispositive (the law specifies a certain type of behavior, but allows otherwise by agreement of the parties). Of course, there are more dispositive norms. So, by virtue of paragraph 1 of Art. 459 of the Civil Code of the Russian Federation, unless otherwise provided by the purchase and sale agreement, the risk of accidental loss or accidental damage to the goods passes to the buyer from the moment when, in accordance with the law or the contract, the seller is considered to have fulfilled his obligation to transfer the goods to the buyer.

Most often, the corresponding rules are formulated abstractly, regardless of the behavior of the subjects. Sometimes the law takes into account the reproach of the behavior of one of the subjects. For example, under an agreement for gratuitous use (loan agreement), the borrower bears the risk of accidental loss or accidental damage to an item received for gratuitous use, if the item is lost or damaged due to the fact that he did not use it in accordance with the agreement for gratuitous use or the purpose of the item or transferred it to a third party without the consent of the lender. The borrower also bears the risk of accidental death or accidental damage to a thing if, taking into account the actual circumstances, he could have prevented its death or damage by sacrificing his thing, but chose to keep his thing (Article 696 of the Civil Code).

As noted, as a general rule, the analyzed norm is applied both in case of loss or damage to property as a result of a simple (subjective) event, and as a result of force majeure. However, sometimes the law stipulates that adverse consequences are assigned to any subject only if the loss or damage to property is caused by a simple (subjective) case. If they occur as a result of force majeure, then the risk is borne by another entity. So, in accordance with paragraph 1 of Art. 901 of the Civil Code of the Russian Federation, a professional custodian is responsible for loss, shortage or damage to property, unless he proves that the loss, shortage or damage occurred due to force majeure (or due to the properties of the thing, which the keeper, when accepting it for storage, did not know and should not was known, either as a result of intent or gross negligence of the bailor). Consequently, in the event of loss or damage to property transferred to a professional custodian due to a simple (subjective) event, the risk is borne not by the owner (bailor), but by the professional custodian. He is obliged to compensate the owner for losses. If the property is lost or damaged due to force majeure, then the risk is borne by the owner (bailor).

When preparing a transaction regarding property, there is a risk of its accidental loss or damage. The premises may be damaged by fire, the cargo may become unusable during transportation, etc. To reduce the negative consequences, companies insure the property and also distribute risks in the contract.

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The counterparties determine in the contract what relates to accidental loss of property and who bears the risk

When they talk about the risk of accidental death or accidental damage to property and determine who bears it, this means damage or loss due to unforeseen circumstances. For example, under the influence of force majeure. However, the law does not specifically define what it is. There is only a general rule about who bears the risk (). The parties deal with the negative results of such events. As a rule, the consequences are expressed in the complete or partial inability to use goods, works or other objects of legal relations.

The issue of responsibility for this must be resolved at the negotiation stage. To reduce the costs of eliminating the consequences, the parties enter into insurance contracts, relying on the law and the terms of the agreement. Often, counterparties independently prescribe the probable circumstances of accidental loss of property and determine the course of action in the event of such a risk. They have the right:

indicate the events associated with risks, determine the moment of transition and occurrence of risks;
determine the procedure for reimbursement of expenses;
establish obligations for risk insurance;
assign responsibility when events occur,
indicate circumstances of force majeure.

For example, the owner of a car took out insurance on it. The insurer’s responsibility was to pay for the risk “Damage” when accidental damage or destruction of the insured property – vehicle. The agreement defined a list of events, which included:

traffic accident,
fire,
disaster,
foreign objects falling on the vehicle,
external damage by animals,
illegal actions of third parties,
soil failure,
failure of a vehicle through the ice on an organized ice crossing,
lightning strike (appeal ruling of the Nizhny Novgorod Regional Court dated April 25, 2017 in case No. 33-4799/2017).

The distribution of risks also depends on the type of legal relationship, the terms of the contract and legislative regulation.

The legal regulation regarding the risk of accidental death depends on the nature of the transaction

In any transaction that is made with property, there is a risk of its accidental destruction. For example, this can happen in relation to:

rental object,
results of contract work,
goods and cargo,
equipment, etc.

The distribution of liability and the application of specific rules of law depend on the nature of the transaction. To understand who bears the risks, it is necessary to understand the obligations of the parties.

The risk of accidental loss or damage to property is borne by its owner

The owner is responsible for the property (Article 211 of the Civil Code of the Russian Federation). The parties may determine a different procedure in the agreement. For example, the parties enter into a lease agreement for a property. The responsibility for the safety of the premises can be assigned to the tenant:

“The tenant is obliged:

keep the facility in good working order and appropriate sanitary condition before delivery to the lessor;

transfer the object to the lessor in good condition according to the acceptance certificate;

carry out routine repairs of the rented property at your own expense;

ensure the safety of engineering networks, equipment, communications at the site;

in case of unauthorized reconstruction, violation of the integrity of walls, partitions and ceilings, installation of networks that distort the original appearance of the property - eliminate them and bring the property back to its previous appearance and within the period determined by the unilateral decision of the lessor;

immediately notify the lessor of any damage, accident or other event that causes (or threatens) damage to the property and promptly take measures to prevent the threat of further damage to the property;

maintain the façade of the building (structure) in which the premises are rented in proper order and carry out its repairs within the time limits established by the lessor;

transfer the object according to the acceptance certificate upon its release to the lessor in proper form, taking into account normal wear and tear, with all inseparable improvements made, carrying out routine repairs in advance, paying for repairs to the lessor according to the estimate presented to him, with properly functioning utility networks and electrical equipment.”

However, it will not be possible to recover funds from the tenant if the agreement does not provide for a penalty for specific violations, and losses cannot be proven.

For example, before handing over the property to the landlord, the tenant removed the antennas from the roof of the building. The latter went to court. He considered that he had incurred losses. The damage was caused by the tenant because rainwater flooded through holes in the roof. The court rejected the claim. The plaintiff did not prove that the losses arose as a result of the actions (inactions) of the defendant, breach of obligations or causing harm ().

The tenant is responsible for the property from the date of transfer of the leased item

The risk of accidental loss or accidental damage to the leased property passes to the tenant at the moment he receives this property. The parties have the right to determine a different procedure in the contract (Article 669 of the Civil Code of the Russian Federation).

If the parties have distributed the risks in the contract, this is followed in case of accidental destruction of the object

When the parties enter into an agreement, the transfer of ownership becomes controversial. Questions arise when we're talking about about delivery. Each party seeks to place risks on the other. For example, the seller plans to relieve himself of responsibility for the item from the moment of transfer to the carrier:

“The seller’s obligation to transfer (deliver) the products to the buyer is considered fulfilled, the ownership of the products and the risk of accidental loss or accidental damage passes to the buyer: when transporting by rail - from the moment the products are delivered by the seller (shipper) to the first carrier (the date is determined by the date stamp of the departure station in the railway waybill)".

If the buyer signed the contract in this version and did not receive the goods (or received them, but of poor quality), it is necessary to study the circumstances of the case. The violation could have occurred due to the fault of the supplier. For example, he could allow the cars to remain idle or otherwise violate his obligations. In such a situation, you can claim damages ().

Responsibility for accidental death and damage under the DDU passes according to the act

To hand over the property, the developer sends a notice. A participant in shared construction acquires the rights to an apartment under a deed. If he evades acceptance, the developer draws up such a document unilaterally and sends a copy to the party. The parties stipulate the corresponding procedure in the agreement:

“The developer’s obligations are considered fulfilled from the moment the parties sign the acceptance certificate for the shared construction project or draw up a unilateral act or other document on the transfer of the shared construction project.”

If the construction participant does not prove the presence of deficiencies that prevented the object from being accepted, the risks will be transferred to it from the date of the acceptance certificate.

For example, the shareholder did not recover the costs of eliminating deficiencies and compensation for moral damage. The developer invited construction participants for acceptance, and the plaintiff refused to sign the act, but did not confirm the presence of defects. The facility complied with GOSTs, SNiPs and other requirements. The court concluded that the plaintiff received the apartment on the day the developer drew up a deed and sent a copy to the owner. This meant that from the specified date the risk of accidental death or damage to the apartment passed to the plaintiff. The plaintiff received the keys a year later, but this had no legal significance, the house complied with the standards (appeal ruling of the Moscow City Court dated October 16, 2017 in case No. 33-41789/2017).

Courts reduce the penalty if the company has violated its obligation to insure the risk, but no negative consequences have occurred

When the subject of the contract is expensive equipment or a capital construction project, the parties prefer to insure the risks:

"An investor for sixty calendar days from the date of concluding the investment contract, he is obliged to insure the risk of accidental loss of the object and provide the customer with a copy of the insurance contract and the original (for verification) or a notarized copy.”

To ensure that the contractor fulfills his obligation on time, the customer may impose penalties. If a party breaches such an obligation, he is obliged to pay a penalty. In this case, the court has the right to reduce the amount of the fine if insurance has been taken out, and negative consequences did not occur ().

Transferring the goods to the buyer is the main responsibility of the seller. The transfer of goods is a unilateral transaction that gives rise to the following legal consequences:

1. the seller’s obligation and the buyer’s right to demand the transfer of the goods cease, and at the same time the seller has the right to demand payment for the goods, and the buyer has the obligation to pay.

2. from the moment the seller fulfills his obligation to transfer the goods, the buyer has:

Ownership of goods;

The risk of accidental loss or damage to the goods passes to the buyer.

As a rule, the parties can determine the moment when the seller fulfills his obligation to transfer the goods by agreement, but if this moment is not defined in the contract, then following rules:

1. Direct delivery of the goods to the buyer or a person authorized by the buyer.

2. If the seller or buyer are spatially separated, and the seller does not have the obligation to deliver the goods to the buyer, then the seller is considered to have fulfilled his obligation:

· Either from the moment the goods are handed over to the transport organization for delivery to the buyer (confirmed by a calendar stamp on the back of the delivery note),

· Or from the moment of delivery of the goods to the communication organization (confirmed by a postal receipt).

3. Sampling. Applies in cases where the goods are transferred to the buyer directly at the location. In this case, the seller is considered to have fulfilled his obligations from the moment of fulfillment following conditions:

Ø The buyer is notified that the goods are ready for transfer;

Ø The buyer knows the place of delivery of the goods;

Ø The goods are identified for the purpose of transfer;

Ø The buyer is authorized by the seller to receive the goods.

4. If ownership of the goods is certified security, a document of title, the seller is considered to have fulfilled his obligations from the moment the security is delivered to the buyer.

In cases where the seller does not fulfill the obligation to transfer generic goods, the buyer has the right to demand termination of the contract and compensation for losses incurred, if the goods are individually defined, then the buyer has the right to demand its transmission. When the subject of the contract is a generic product, the question arises about the seller’s liability in case of violation of the conditions on the quality of the product (2 types of violations):

- Transfer in smaller quantities(and it has already been paid), then the buyer has the right to demand:

v transfer of the missing quantity;

v refund of part of the purchase price.

- Transfer to more . In this case, the buyer has the right:

v accept the excess quantity of goods and pay for it;

v refuse the excess quantity of goods, but the buyer is obliged to notify the seller under the supply agreement, by virtue of Art. 514 accept the goods for safekeeping, notify the seller and assign him a deadline to dispose of the fate of the goods. If the seller does not dispose of the goods within the appointed time, the buyer has the right:

1) Send the goods to the seller, collecting from him the costs of storage and return transportation;

2) Sell the goods to any person at any price and deduct from the proceeds your expenses for storing and selling the goods, and return the remaining amount.

In addition to the quantity of goods transferred, the parties can establish its range. Range represents the division of a homogeneous product according to qualitative and quantitative indicators, i.e. assortment positions. As a rule, the range is determined (only!) by agreement of the parties and reflects the needs of the buyer.

When concluding long-term sales or supply contracts, it is advisable to determine the assortment for each batch of goods supplied for each period by drawing up a specification. In cases where, when concluding such contracts, the buyer did not indicate the assortment he required, but it follows from the terms of the contract that the product must be supplied in an assortment, the seller has the right:

Refuse to perform the contract;

At your own peril and risk, independently determine the assortment based on the known needs of a particular buyer.

In case of violation of the assortment condition of Art. 468 of the Civil Code ambiguously defines the consequences for each case of violation of the assortment condition:

1. Transfer of goods for inconsistent assortment items. (The consequences are the same as when transferring inconsistent assortment items).

2. Non-delivery of agreed assortment items. (The seller must make up the shortfall in the subsequent period).

The seller is obliged to deliver the goods in the agreed upon completeness or set. Completeness – an artificial connection of individual structural elements, as a result of which all elements perform a single functional purpose of the product (computer). Set - a set of heterogeneous goods that are not interconnected by a single functional purpose. The rules for non-compliance with these two conditions are the same:

1. The buyer has the right to demand additional completion within the appointed period (a reasonable period cannot be proven).

2. Reduction of purchase price and damages.