Paid and not received goods on time: return of subscription or demand for delivery of paid goods (+ demand template)

Legal relations related to the supply of goods are regulated by the Civil and Economic Code of Ukraine. It should be noted that according to the general principles of civil law, the contract is binding on the parties. Therefore, in the case of making a prepayment based on the terms of the contract, the buyer has the right to expect that the goods will be delivered within the period specified in the relevant contract. Such a contract can be a supply contract or a sales contract. At the same time, if the goods were not delivered by the seller (supplier) within the period agreed upon by the parties in the relevant contract, the buyer has the right (at his discretion) to either demand the delivery of the paid goods, or to demand the return of the amount of advance payment from the seller. Below is the regulatory justification of the buyer's claim to return the amount of the advance payment for the goods.

Therefore, according to Art. 629 of the Civil Code of Ukraine, the contract is binding on the parties.

Unilateral waiver of the obligation or unilateral change of its terms is not allowed, unless otherwise established by contract or law (Article 525 of the Civil Code of Ukraine).

According to Article 526 of the Civil Code of Ukraine, the obligation must be properly performed in accordance with the terms of the contract and the requirements of the Civil Code of Ukraine, other acts of civil legislation, and in the absence of such conditions and requirements - in accordance with the customs of business turnover or other requirements that are usually set .

In accordance with Article 530 of the Civil Code of Ukraine, if the obligation has a term (term) for its performance, then it is subject to execution within this term (term).

Part one of Article 193 of the Economic Code of Ukraine establishes that business entities and other participants in economic relations must fulfill economic obligations properly in accordance with the law, other legal acts, the contract, and in the absence of specific requirements for the fulfillment of obligations - in accordance with requirements that are usually set in certain conditions.

Unilateral refusal to fulfill obligations is not allowed, except for cases provided by law, as well as refusal to fulfill or postponement of fulfillment on the grounds that the obligations of the other party under another contract were not properly fulfilled (Part 7 of Article 193 of the Economic Code of Ukraine) .

According to the provisions of Art. 265 of the Economic Code of Ukraine, according to the supply contract, one party - the supplier undertakes to transfer (deliver) the goods (goods) to the other party - the buyer within the stipulated time (terms), and the buyer undertakes to accept the specified goods (goods) and pay for them a certain amount of money

According to Art. 712 of the Civil Code of Ukraine, according to the supply contract, the seller (supplier), who carries out business activities, undertakes to transfer the goods to the buyer's ownership within the set period(s) for use in business activities or for other purposes not related to personal, family, home or other similar use, and the buyer undertakes to accept the goods and pay a certain amount of money for them. The general provisions on purchase and sale apply to the supply contract, unless otherwise established by the contract, law or does not follow from the nature of the relations of the parties.

Article 655 of the Civil Code of Ukraine stipulates that under a sales contract, one party (the seller) transfers or undertakes to transfer property (goods) to the ownership of the other party (the buyer), and the buyer accepts or undertakes to accept the property (goods) and pay a certain amount of money for him.

Article 662 of the Civil Code of Ukraine states that the seller is obliged to hand over the goods specified in the sales contract to the buyer.

Violation of the obligation, in accordance with Art. 610 of the Civil Code of Ukraine, is its non-fulfillment or fulfillment in violation of the conditions determined by the content of the obligation (improper fulfillment).

At the same time, according to the provisions of Part 1 of Article 612 of the Civil Code of Ukraine, the debtor is considered to be in default if he has not started to fulfill the obligation or has not fulfilled it within the period established by the contract or the law.

According to Part 1 and Part 2 of Article 693 of the Civil Code of Ukraine, if the contract stipulates the obligation of the buyer to partially or fully pay for the goods before their handover by the seller (advance payment), the buyer must make the payment within the period established by the sales contract, and if such a period is not established by the contract, - within the period determined in accordance with Article 530 of this Code. If the seller, who received the amount of the advance payment for the goods, did not hand over the goods within the set period, the buyer has the right to demand the handover of the paid goods or the return of the amount of the advance payment.

In accordance with the second part of Article 693 of the Civil Code of Ukraine, the buyer has the right to demand the transfer of the paid goods or the return of the prepayment amount from the seller, who received the prepayment amount of the goods and did not deliver them within the specified period.

Therefore, in accordance with the provisions of this regulation, the Buyer has the right to demand, among other things, the return of the advance payment for the undelivered goods.

The right of the buyer to demand the return of the advance payment from the seller defined by the specified norm is, in its content, the right of the buyer to unilaterally refuse the obligation, as a result of which the Seller's obligation to the Buyer to supply the Goods (a certain batch of the Goods) is terminated and a new monetary obligation arises .

That is, based on the analysis of the provisions of Article 693 of the Civil Code of Ukraine, the condition for its application is improper fulfillment by the seller of his obligation to deliver the goods to the buyer in a timely manner. And in the event of such a condition, the Buyer has the right to act alternatively: either to demand the delivery of the paid goods from the Seller, or to demand the return of the amount of advance payment. That is, the manifestation of will regarding the choice of one of the options of the Buyer's demand must be made by him in an active and unambiguous form of such behavior, and demonstrated to the seller.

At the same time, since the law does not define the form of presentation of such a claim by the buyer, the latter can exercise his right in any way: both by addressing the debtor with a claim, letter, telegram, etc., and by presenting a claim through the court in the manner specified by law procedural form - the claim form.

You can create a Requirement for the refund of the previous subscription in the Instaco designer by following the link. To create, you only need to enter the necessary data in the designer.

A sample of the Demand for the refund of the advance payment was prepared by Natalya Krasnokutska (Instagram @advocate_knn, Facebook instaADVOCATE).

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