And who to you doctor?
the Subject of consumer protection, is old as the world. Especially as after the introduction in operation of the Law of Ukraine “ About consumer protection “ in the new edition, on this subject pisano - it is rewritten. My fellow writers pay close attention to the rights of the consumer therefore also the author of these lines, decided not to stand aside and to bring the modest contribution to increase of legal consciousness of our compatriots. Vital realities not always coincide with guarantees of the state on protection of our violated rights. All of us, to some extent, act in a role, both producers, and consumers. And there is nothing surprising that by the nature of the activity, having rendered properly service or having executed work, we have the right to demand also the similar attitude towards ourselves. However, acting as consumers, we often should face unfair producers of goods and services. Though according to the current law “ About consumer protection “ the seller is obliged to report to the consumer production of appropriate quality, and also to provide information on this production, often in practice it looks just the opposite - the seller hurries to get rid of low-quality production, and not always tells about qualities and properties of goods. Examples of these violations it is possible to give great variety - from sale of food including children`s dairy products which term of realization is strictly limited, to goods of house use, and including, production of furniture to order. And even when the latent defects are revealed, the seller (the performer, the producer) often does not hurry to eliminate them, and just the opposite goes for open confrontation with the consumer, thereby, aggravating the relations with the consumer and leading up the last to “ critical point “. From - for what it occurs, it is impossible to explain, but the fact remains - the seller and the consumer occupy aggressive on the relation to each other positions. As a result the golden rule - " works; the consumer is always right “ and, having brought the matter to court, the consumer in most cases becomes a winner. Probably, it occurs, from - for legal nihilism both producers, and consumers therefore also the purpose of this publication consists in paying attention to those nuances which arise pretty often.
at the beginning of 2006 asked for a legal aid the citizen P. who had difficult relationship with the subject of business activity - physical the person (SPDFL) S. This history has no limitation period and happened to the citizen P. after introduction of the law of Ukraine “ About consumer protection “ in the new edition. Understanding the arisen situation and analyzing actions of the parties, involuntarily you come to a conclusion about legal illiteracy of other subjects of business activity. It is simpler to extinguish only the inflaming fire, but not to pull out from fire to a tl the burned-down brands. But the businessman in this situation arrived with an accuracy on the contrary, did not go to the compromise solution in the relationship with the consumer and voluntarily brought the matter to court session where it is successful it and lost. What this citizen was guided by remains a riddle, and here the consumer P. accurately adhered to the current legislation.
the Short plot of the this case such is - at the beginning of 2006 between the citizen of the Item and SPDFL C. the contract for production and installation of kitchen furniture in the apartment of the customer was signed. According to terms of the contract, the kitchen furniture has to be made and established in two weeks according to the sketches and the sizes provided by the customer. Color of a product, at the request of the customer, had to be red. Furniture cost, under the terms of the contract, together with installation made 4500 UAH. The citizen P. made an advance payment of 50% of order cost, received the receipt and satisfied with the perfect transaction, went home to please the members of household. However, as further it appeared, the pleasure was premature. After the term determined in the contract, there passed three more weeks before workers of SPDFL of S. delivered to the conscientious customer long-awaited kitchen furniture. The joyful mood of the citizen P. was quickly replaced by bitterness of disappointment, and on it there were powerful reasons:
• kitchen furniture did not meet the specification, sketches and drawings attached to the contract;
• are not observed the order sizes which considerably exceeded the parameters specified in the contract;
• color of furniture was brightly - yellow color with reddish outflow that did not correspond to the order;
• on product doors from outer side were available numerous scratches and damages.
Is natural, to accept such furniture at the producer, at the citizen P. no desire and therefore the statement of the revealed violations which was signed by the employee of SPDFL S was drawn up was absolute. It would seem that everything is clear and clear - the consumer does not accept the made furniture, and the producer, adhering to a law letter, has to eliminate defects. According to Art. 8 of the Law of Ukraine “ About consumer protection “ (further - the Law), in case of identification during the established warranty period of shortcomings, the consumer, as it should be and the terms established by the legislation has the right to demand:
• proportional reduction of the price;
• free elimination of shortcomings of goods in reasonable time;
• reimbursement for elimination of shortcomings of goods.
As, in the specified case, could not eliminate defects (to replace color of furniture and to reduce dimensions), the consumer has the right at the choice to demand from the seller or the producer:
• cancellation of the contract and return of the sum of money paid for goods;
• to demand replacement of goods by the same goods or on similar, from among available for the seller (producer).
A the seller (producer) is obliged to accept goods of inadequate quality at the consumer and to meet his requirements.
But on it a peace stage contractual obligations between the citizen of the Item and SPDFL C. comes to an end. For the unclear reasons, the performer becomes on the way of open confrontation and refuses satisfaction of requirements of the consumer. Game in a cat and mouse begins - does not answer the phone calls of SPDFL of S., with the citizen P. refuses personal meetings, and in every possible way avoids it. Logicians in actions of the performer any it is not looked through. Though the contract for production of a product and its installation it was developed to producers in which, by the way, also penalties are provided. To them, it is also signed, however S. did not hurry to execute it in full SPDFL. The consumer driven to despair, sends the manufacturer the registered mail with a claim and the copy of the act of discrepancy to the made furniture to drawings and sketches, and also the offer on cancellation of the contract and return of the paid sum in a voluntary order. S.`s SPDFL ignored this letter and to accept the offer on peaceful settlement of the arisen disagreements, refused. Still it is necessary to add to the above that the oversized furniture remained in the apartment of the customer, creating also additional difficulties in use of premises. This circumstance formed further the basis for collecting moral harm as difficult movement on premises involves an aggravation morally - psychological climate in a family, and promote emergence of quarrels and contentions. And the performer did not hurry to take away furniture.
What farther to do to the angered consumer how to assert the violated rights when the performer without having satisfied terms of the contract, having received 50% of an advance payment, further just refused to meet requirements of the consumer? Only in a judicial proceeding to protect itself and to make responsible the unfair performer. Further events and developed.
According to Art. 10 of the Law if when working (rendering of services) becomes obvious that they will not be executed because of the performer according to terms of the contract, the consumer has the right to appoint to the performer the corresponding term for elimination of shortcomings. In case of non-performance and this requirement in a certain time - to dissolve the contract and to demand indemnification or to charge correction of shortcomings to the third party at the expense of the performer. The consumer has levers of financial impact on the unfair performer, in the form of a penalty fee of 3% per every day (hour) of delay of working costs (services). I think for you, dear reader, it is possible to count the penalty fee size from the sum of 4500 UAH. In total - 135 UAH a day are a bit too much, even for the successful businessman. Here only why did not take any measures for settlement of the conflict of SPDFL of P., knowing in what sum unfair execution of the order will cost him, remains secret. According to the current legislation, the performer does not bear responsibility for non-performance or other inadequate implementation of the obligation and shortcomings of the performed works or the provided services if he proves that they arose because of the consumer or as a result of force majeure. It is natural that at a stage of pre-judicial settlement of dispute, nobody submitted such proofs.
the Citizen P., having got the corresponding advice concerning protection of the violated rights, and having armed with the Law of Ukraine “ About consumer protection “ addressed to one of district courts of Kharkiv where the this case and was considered. The judgment was in favor of the consumer. It would be desirable to add that at satisfaction of requirements of the consumer, the court at the same time resolves an issue and of compensation of moral (non-property) harm, legally believing in how many the spent forces and nerves fight for the rights costs the consumer. According to Art. 22 of the Law, consumers are exempted from payment of the state tax in the claims connected with violation of their rights. It is natural that the citizen P. specified in the statement of claim not only the sum of a principal debt, but also demanded compensation for moral harm and a penalty fee for the entire period how many this lawsuit lasted.
the Essence of this article is reduced to the fact that in working hours we are producers of goods and services, and in off-duty time - ordinary consumers. Also it would be quite good that at execution of the labor duties, we put ourselves more often to the place of buyers or customers as in a similar situation there can be also ourselves. Also do not allow us to pass God those drudgeries and humiliations, in fight for upholding of the violated rights.