Online buyers were protected by the Moscow City Court: they find themselves defenseless against the arbitrariness of marketplaces

To confirm the extreme relevance of this review, let me remind you of the news of recent days: many hundreds of air passengers have had their tickets canceled for the Ekaterinburg-Phuket flight, which were sold to them very cheaply due to a technical error. In this case, the carrier refers to incorrect ticket issuance and at the same time offers a discount to those who re-purchase the same tickets at many times the price. Although it would be logical to cancel the illegal cancellation and compensate those who have already suffered from it. And this is fully consistent with the above-mentioned review, since a number of its points provide a legal assessment of such situations.

One of the paragraphs describes such a court case: a buyer bought something very cheaply in the online store of a large metropolitan department store, but the seller refused to hand over the goods, citing the fact that due to a technical error, the purchase price was 846 times lower than the real one. And the courts sided with the seller, assessing the buyer’s action as an abuse of right. But the Supreme Court did not agree with this and indicated that the seller does not have the right to unilaterally change the price that was in effect at the time he entered into an agreement with the buyer, when the seller had already assigned a number to the order.

There is a similar subject of dispute in another case from the review: the consumer entered into an agreement with the dealer to purchase a car for 3.5 million rubles. But when, five months later, this car arrived at the dealer’s warehouse, the buyer was offered to pay another half a million for it. He paid extra and took the car, after which he sued the seller to recover the difference. The courts rejected the buyer on the grounds that he signed an additional contract and took the car of his own free will. But the Supreme Court reminded them that the seller does not have the right to unilaterally change the price of the goods determined by the purchase and sale agreement with the consumer, and pointed out: forcing the consumer to enter into a new contract on different terms is unacceptable.

As these cases show, businessmen tend to forget that entrepreneurial activity is inherently associated with the risk of losses and this risk is included by the entrepreneur in the price of his products. What is the difference between a technical error by a programmer or another employee, as a result of which the price on the seller’s website decreased many times over, and a technical error by a plumber, which resulted in a pipe break and damage to goods in the warehouse? Moreover, according to the law on the protection of consumer rights, the service provider is financially liable for damage caused to the life, health or property of the consumer in connection with the use of materials, equipment or anything else necessary, regardless of whether the level of scientific and technical knowledge allowed it to be identified in advance their special properties or not. That is, he is responsible in rubles not only for his own, but also for other people’s mistakes, including those that could not be prevented if they caused harm to consumers.

But here’s another story – not about money, but about goods, or more precisely, about the consumer’s right to demand execution of the concluded sales contract “in kind”. A citizen ordered and paid for green tea on one of the largest marketplaces with delivery in three days. But the next day the seller canceled the order without explanation and returned the money. The consumer responded to this with a complaint demanding that tea be brought to him. He was again refused, citing a clause in the marketplace’s Terms of Sale, which allows him to unilaterally terminate the contract by notifying the client, for example, if the ordered product is out of stock.

Then the consumer filed a lawsuit, demanding that the marketplace be obliged to transfer the sold tea, to recover everything that is required by law in case of violation of consumer rights, and also to recognize the mentioned condition of sale of the marketplace as invalid. The defendant rejected these claims on the grounds that the consumer voluntarily entered into a contract on the terms offered to him, including one that allows the seller to terminate the contract unilaterally.

Three courts agreed with the consumer to invalidate the clause in the rules on the right to unilaterally cancel an order. They also ordered the defendant to pay compensation of 500 rubles – almost a hundred times less than the amount requested by the plaintiff. However, they refused to force the seller to hand over the tea to the consumer, prompting him to approach the Supreme Court. As it turned out, it was not in vain – here his demand was recognized as legal, explaining that in his claim he demanded not the return of money, but the delivery of the goods, and that the return of money for the goods itself does not relieve the seller from fulfilling the obligation.

I checked: on the website of that same marketplace, the invalidated condition no longer exists. The general tone when discussing this decision of the Supreme Court in the legal community is also encouraging, in the spirit that they will have to reconsider the terms of their public contracts and judicial practice, since the courts will now be more inclined to side with the consumer and less sensitive to the arguments of sellers. The general assessment of this case by a well-known expert sounded especially optimistic to me: “The trend of uncompromising consumer protection continues.”

And yet, when we decide to buy or order something, don’t we subsequently plan to sue the seller or contractor? For a consumer, a lawsuit means at least six months, more likely a year or more of waiting for a result, which is by no means guaranteed, and even when a decision is made in favor of the consumer, it is not always possible to achieve its execution. Plus money, strength, nerves… Therefore, it is so important that legislation helps prevent massive violations of consumer rights, and does not provoke our market counterparties to commit them.

Unfortunately, in the digital sphere, which is growing so quickly that the legislator cannot keep up with it, this is not yet very successful. I judge this based on the standard sales conditions offered to consumers on the websites of the largest marketplaces. Without delving into them too much, but after the fact of purchase, accepting them as terms of the contract with the site, tens of millions of our fellow citizens make billions of purchases, and this number is growing every month, even against the general background of stagnant consumer demand. These agreements themselves are products of the free creativity of teams of competing platforms. On one they are called the terms of sale of goods for individuals, on the other – the rules for using the trading platform, on the third – the rules for using the service, and there is also a fourth, fifth… and each has its own name for this document. They have different structures and content, but they are all united by complete power over buyers, who are forced to accept them as is and have no other opportunity to change anything about them except by challenging them in court.

Such cases are unique, so we should be grateful to the consumer who achieved in court the invalidation of one condition of a standard contract of one company. But we must understand that there are more than one such conditions there, and not only at this site. The Prosecutor General’s Office introduced us to its analysis of the rules established for buyers by another major marketplace, in which it saw a number of conditions that are contrary to the law or, in the absence of a law, unfair to the consumer. And we see that most consumer complaints are related to such conditions.

This means that we urgently need to close the gaps in digital legislation, and until this task is resolved, we diligently form a common understanding of fair and other practices of interaction between marketplaces and their sellers with consumers. And through joint efforts we will improve the legal literacy of all participants in this new market, which, I have no doubt, is the future.