Sometimes sellers require buyers to make an advance payment for the goods. This serves as a guarantee of future purchase. This usually happens if the product is made to order, is unique, expensive, or the product is available for pre-order.
Important! If you yourself are sorting out your case related to the return of an advance payment for an item, then you should remember that:
- All cases involving consumer fraud are unique and individual.
- Understanding the basics of the law is useful, but does not guarantee results.
- The possibility of a positive outcome depends on many factors.
To find out whether the prepayment can be returned, carefully read the purchase and sale agreement. It must contain a condition regarding the advance and its retention. Otherwise, it will be difficult for you to prove that you have already given part of the amount to the seller.
Even if such a condition is not in the contract, the law protects the interests of consumers. We will tell you further how to return an advance payment for a product if you change your mind about buying it.
Is it possible to get my money back?
Requesting an advance payment is quite popular among sellers. They often stipulate in the contract that the deposit will not be returned if the buyer refuses the transaction, thereby breaking the law.
The fact that the consumer has every right to refuse a purchase at any time before the transfer of goods, performance of work or provision of services is stated in Art. 497 Civil Code of the Russian Federation. In this case, the buyer is obliged to compensate the retail outlet for the costs incurred. The same rule is contained in the Law on Protection of Consumer Rights. In case of refusal, the advance must be returned.
Note!
Rospotrebnadzor considers only the requirement of a deposit illegal. The department notes that this violates consumer rights and recommends refraining from transactions with such requirements.
If the transaction does not take place for a reason beyond the control of the consumer, he also has the right to a refund of the prepayment by law. In this case, you can return the prepayment under the contract in full. This rule may be changed by the purchase and sale agreement, so it is important to read its terms carefully. If the product is quite expensive, you should show the agreement to a lawyer in advance so that he can assess its legality.
The most commonly used methods for returning prepayments for services, work and goods:
- termination of the concluded purchase and sale agreement;
- drawing up a separate application addressed to the seller.
A competent claim for a refund of the prepayment for the goods can help resolve the problem in your favor. Hand it over to the seller against signature. In the text, indicate the details of the purchase and sale agreement, the grounds for returning the advance payment, and links to legal provisions that allow you to demand your money back. If you are not sure that you will draw up a claim correctly, entrust this work to a lawyer. Even if this document seems like a mere formality to you, it can significantly increase your chances of getting a refund of the advance payment for the goods simply because many stores do not want to get involved in litigation.
A refund of the advance payment is also possible if the seller broke his promises and did not sell the goods within the period specified in the sales contract. Even before signing, check whether the agreement contains a specific deadline for the transfer of products. If not, ensure that this paragraph is included in the text. Otherwise, it will be very difficult for you to receive the paid product. If you doubt the legality of the contract and the integrity of the retail outlet, involve a lawyer in the matter.
If the seller violates the terms, you have the right to the following actions of your choice:
- set a new deadline and require the goods to be transferred before its end;
- demand a refund of the advance payment.
Refunds of prepayment for undelivered goods must be made within 10 days. In addition, the seller is obliged to compensate you for losses, and for each day he must pay a penalty - half a percent of the amount of advance payment for the goods. If a retail outlet violates the requirements of the law, you will have to seek a refund of the advance payment for undelivered goods through the courts.
Reservation without a contract: is it possible not to return the prepayment for a canceled tour?
The hero of our publication found himself in a difficult situation: the tour was booked without an advance payment agreement, but the client suddenly refused. He doesn’t even want to hear about “fines,” declaring that since there is no agreement, then there is nothing to show him. Is it possible to answer the client with the same coin and point to the door?
One travel agent spoke about a similar case on the Profi.Travel page on the social network.
We sold a tour with the nearest departure date. There were last seats on the flight, and we booked a client without a contract, having received an advance payment of 15,000 rubles from her. The next day she was supposed to come to the office and sign documents, but in the morning she called and canceled the trip. We informed her that the tour had already been confirmed and cancellation would entail a 100% “fine.” She replied that she did not sign the agreement, which means we have no right to withhold her money. Within a day, we managed to resell her tour, although we had to reduce the price. We offered the tourist to return 10,000 rubles, withholding 5,000, but she does not agree: she demands a full refund and threatens to sue. How can the situation be resolved, given that she transferred the advance payment to a bank card belonging to the husband of the agency director?
Having seen this message, many colleagues advised the agent to answer the tourist in the same manner: there is no contract, we don’t know you, your money has not been received into the agency’s account, and therefore we will not return anything.
Is it possible to go this way, we asked the lawyers. As it turned out, the simplest solution is far from the most correct: according to experts, the absence of an agreement will not prevent the tourist from demanding the return of her funds through the court.
Alexander Bayborodin, head of A. Bayborodin’s law firm: To get their funds back, the tourist will first need to prove the very fact of transferring money to the card - this can be done in an elementary way. Another thing is, will the plaintiff be able to prove that he paid the travel agency, and not an individual? If so, then the travel agency will lose the case.
But even if the tourist fails to prove the connection between the recipient of the money and the agency, he will be able to return the money in another way.
Evgenia Tukhbaeva, director of a separate division at BLS Custos Group in Kazan: The fact that a tourist transfers funds not to the travel agent’s bank account, but to an individual, of course, weakens the tourist’s position. But he still has the opportunity to file a claim against an individual, accusing him of unjust enrichment and demanding recovery of the amount paid and legal costs.
In turn, the travel agent must try to prove in court that the deal was really concluded and that the tourist subsequently allowed her tour to be resold at a lower price. True, the agent's chances are extremely small.
Ilya Tuguev, lawyer in the field of tourism, lawyer at the Moscow Bar Chamber: In accordance with Article 432 of the Civil Code, an agreement is considered concluded if an agreement is reached between the parties on all essential terms in the required form. According to the Federal Law “On the Fundamentals of Tourism Activities,” an agreement between a tourist and a travel agent must be concluded in writing, and about 20 conditions are essential. If a travel agent, with reference to Article 434 of the Civil Code, tries to recognize correspondence with a client on social networks or by mail as a written form of the contract, then he will probably lose. The fact is that this correspondence hardly stipulated all the essential terms of the contract for the sale of a tourism product. Most likely, the court will recognize the contract as not concluded, and the travel agent will be obliged to return the money.
By the way, in this case of success, the client will be able to sue much more than 15 thousand rubles. According to lawyers' calculations, penalties and fines will triple the initial amount. In addition, the agency will have to pay the plaintiff's legal fees. And if the client goes further and contacts Rospotrebnadzor, the travel agency will face additional fines for non-compliance with the Rules for the provision of services and violation of the consumer’s rights to receive necessary and reliable information.
Unfortunately, even if the agent thinks that his client is wrong, the law and the court most often end up on the side of the consumer. Therefore, in such a situation, lawyers advise immediately returning the money to the problem tourist, without bringing the matter to court. Moreover, in this case we are talking about only 15 thousand rubles. In order not to have to part with a much larger sum, experts remind: no contract - no reservation.
When will the money not be returned?
If the retail outlet manages to prove that it was not possible to deliver the products on time due to unforeseen circumstances or the fault of the buyer, the money will not be returned to you.
In addition, it will not be possible to return the advance payment for the goods if there is no contract. In fact, your transaction is not secured by anything, so getting your funds back will be problematic. If the seller refuses to transfer funds and claims that you did not pay him anything, go to court. It is best to enlist the support of a competent lawyer. You will need evidence of the transfer of money (receipts, witness statements, CCTV footage).
Note!
It will be difficult to return the advance payment if the purchase and sale agreement (main or preliminary) contains clauses on the withholding of the advance payment. For example, an agreement to renovate an apartment may state that the advance is used to purchase materials. If by the time the buyer decides to cancel the service, the materials have already been purchased, the money will not be returned to you.
Making a claim
If a refusal to refund the entire amount of the prepayment is received, then it is necessary to make a claim or statement against the seller in writing, which will describe such criteria as: name of the product, amount of the prepayment, delivery time, time of delay and the requirement for the seller to pay a penalty from that day, to which, according to the contract, the goods must be transferred. The claim must be made in two copies, and one of them is given to the seller or his legal representative for signature. You also need to indicate the date it was received.
If the product was not purchased ready-made, but was ordered from its manufacturer, then the buyer has the right to demand 3% of the entire prepayment amount for each day overdue.
If the seller fails to pay the penalty within ten days after the buyer’s request, the latter may require payment of interest on the use of his funds. If, after the expiration of the legally established period, the prepayment amount has not been returned to the buyer, then he needs to go to court with this claim in order to resolve the conflict in court.
To competently draw up a claim or statement of claim, it is recommended to contact specialists who protect consumer rights. It is also worth noting that the buyer’s demands cannot be satisfied if the seller manages to prove that the obligations were violated due to circumstances beyond their control or due to the fault of the former. So, prepayment is not refundable; we have explained how to write a claim.
Where to contact?
First of all, contact the seller. First, you can come with an agreement and a receipt for the transfer of money and explain the situation. This method is usually used to return an advance payment for a product if the buyer does not need it. Often, retail outlets accommodate the client halfway and return the funds.
Difficulties may arise if the products were made to order according to your measurements and individual design. The issue may have to be resolved through court.
If you want to make a refund of the advance payment for undelivered goods, you can also try to reach an amicable agreement. If all deadlines have passed, ask for your money to be paid. If the seller refuses, file a claim. If after 10 days the retail outlet does not return the money or does not set a new deadline for transferring the goods, you can go to court.
A complaint to Rospotrebnadzor can also help. It can be submitted through the website. To do this, fill in the required fields:
- Full name and your contacts;
- division of Rospotrebnadzor;
- text of the appeal.
In addition, you can call the Hotline number 8800-100-29-26. She works around the clock.
Another option is to write a complaint and submit it personally to the Rospotrebnadzor Office. The appeal consists of three parts. In the first, indicate your details, contacts, name and address of the Rospotrebnadzor Office, information about whom the complaint is being filed. In the main part, describe the situation and indicate your requirements. In the final part, provide a list of attached documents, date and sign.
The department will conduct an inspection and make a decision. If it is in your direction, the seller will be forced to return the money for the goods.
Prepayment in the online store
Most often, it is online stores that set the deposit requirement. Many work on 100% prepayment in order to protect themselves from the risks of the buyer not purchasing the goods from the courier service.
The condition for the return of prepayment also applies to sellers operating via the Internet. The consumer has the right to refuse the purchase at any time before receiving the goods. However, it may be difficult to get your money back. If the basis for returning the prepayment is that the buyer changed his mind about purchasing the product, although the product meets the quality requirements, the online store may not return your money, citing postage costs. Indeed, delivery costs are the seller’s losses, which you must cover if you cancel the transaction. Read the terms of trade carefully. They are available on the websites of online stores; if you have any questions, check with a consultant to see if you can get the money back for prepayment of the goods.
Refunding your deposit may take time because the seller must first receive your product back before sending you the deposited amount.
Refunds of the prepayment amount for undelivered goods or products that did not suit the buyer are made to the same card from which the payment was received. This is a mandatory requirement. Otherwise, online stores are subject to the Consumer Protection Law and operate according to the same rules as stationary retail outlets.
ATTENTION!
Due to recent changes in legislation, the information in this article may be out of date!
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