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The Spayerlex Lawyers Association has received a Request for a legal opinion on the issues previously discussed with the Client from the natural person-entrepreneur Yulia Viktorovna Romanov (hereinafter – the Client).
In this regard, we would like to inform you as follows:
According to Art. 9 of the Law of Ukraine “On Protection of Consumer Rights” the consumer has the right to exchange non-food goods of proper quality for a similar one from the seller from whom it was purchased, if the goods did not satisfy him in form, dimensions, style, colour, size or for other reasons can not be used by him for its intended purpose.
The consumer has the right to exchange goods of proper quality within fourteen days, not counting the day of purchase, unless a longer period is not announced by the seller.
Exchange of goods of proper quality shall be made if they have not been used and if their trade dress, consumer properties, seals, labels, as well as the settlement document issued to the consumer together with the sold goods, or the QR code reproduced on the display of the software recorder of settlement operations (displays of the device where the software recorder of settlement operations is installed), which allows the consumer to read and identify it with the settlement document by the structure of the data contained therein, or sent electronically.
The list of goods not subject to exchange (return) on the grounds specified in this Article shall be approved by the Cabinet of Ministers of Ukraine.
If at the time of exchange of similar goods are not on sale, the consumer has the right to either purchase any other goods from the available range of goods with the appropriate transfer of value, or to terminate the contract and get back the money in the amount of the value of the returned goods, or to exchange the goods for similar at the first arrival of the relevant goods on sale. The seller is obliged to inform the consumer requesting the exchange of goods on the day the goods are available for sale.
In the event of cancellation of the contract of sale, settlements with the consumer are made on the basis of the value of the goods at the time of purchase. The money paid for the goods shall be returned to the consumer on the day of cancellation of the contract, and in case of impossibility to return the money on the day of cancellation of the contract – in another term by agreement of the parties, but not later than seven days.
Consequently, goods of proper quality are subject to exchange within 14 days from the day following the day of purchase, in the presence of the following circumstances:
It should be noted that the consumer does not have the right to return goods of proper quality if the seller has similar goods. In this case, the buyer can only exchange the purchased goods for a similar product of a different shape, size, colour, style, dimensions, etc.
In the absence of similar goods, the consumer has the right to exchange the goods for other goods from the available range with the appropriate transfer of value or to terminate the contract of sale and receive money back in the amount of the value of the returned goods.
Therefore, I recommend to require consumers who wish to return the purchased goods to indicate a specific reason for the return (exchange) of goods.
If the goods have been used, the consumer should refuse to return the goods.
The Resolution of the Cabinet of Ministers of Ukraine No. 172 dated 19.03.1994 “On Implementation of Certain Provisions of the Law of Ukraine “On Protection of Consumer Rights” approved the list of goods of proper quality according to Appendix No. 3, not subject to exchange (return) if they do not satisfy consumers for any reason.
Annex No. 3 of the above Resolution provides for the following List of Goods of Good Quality not subject to exchange (return):
Under article 4 of the Preschool Education Act, the basic stages in the physical, mental and social development of a child’s personality are infancy, early childhood and preschool age.
A child under one year of age is an infant.
Consequently, goods intended for children under 1 (one) year of age are goods for infants and are not subject to return.
Consumers have the right to exchange (return) purchased candles, as they are not on the list of goods not subject to return, if the candle does not belong to perfume and cosmetic products (n-d: scented candles).
In addition, according to paragraph 3 of part 3. 5 of Art. 13 of the Law of Ukraine “On Protection of Consumer Rights” in the case, unless otherwise provided by the contract, the consumer has no right to terminate the contract concluded at a distance, if the contract concerns the manufacture or processing of goods at the request of the consumer, that is, if the goods can not be sold to other persons or can be sold only with significant financial losses for the seller (performer).
Agreement concluded at a distance – an agreement concluded by the seller (executor) with the consumer by means of remote communication.
Thus, the consumer cannot return the goods if such goods are made to order, if the order was made by means of remote communication (e.g. via an internet site, social networks, etc.) and the goods cannot be sold to other persons (e.g. the ordered goods contain name inscriptions, the model, shape of the goods are not serial, but are specially made to order, etc.).
According to part 3 of article 4 of the Law of Ukraine “On Protection of Consumer Rights” consumers are obliged:
1) before using the goods, to carefully familiarise themselves with the rules of use set out in the documentation provided by the manufacturer (seller, executor) for the goods;
2) in case of need for clarification of the conditions and rules of use of the goods – before using the goods – to apply for explanations to the seller (manufacturer, performer) or to another person specified in the operating documentation, performing their functions;
3) use the goods according to their intended purpose and comply with the conditions (requirements, norms, rules) established by the manufacturer of the goods (executor) in the operational documentation;
4) in order to prevent negative consequences of the use of the goods for the consumer – to apply safety measures provided by the manufacturer in the goods in compliance with the special rules stipulated in the operating documentation, and in the absence of such rules in the documentation – to comply with the usual reasonable safety measures established for goods of this kind.
From the analysis of the above-mentioned duties of the customer it is assumed that the customer is obliged to use the goods in accordance with the terms of operation, the rules of use of the goods in accordance with their intended purpose and in accordance with the conditions established by the manufacturer.
The legislation of Ukraine does not define the concept of “krizhma” or “kryzhmo” and does not refer it to any category of goods.
Consequently, it is the manufacturer of the goods that determines the use of the goods and their intended purpose.
In this regard, I believe that baptismal clothes and kryzhma can be classified as goods for infants, if they are intended for children under 1 year of age.
In addition, taking into account their intended purpose, kryzhma can be classified as bed linen.
In order to avoid disputable situations on the return of goods I recommend:
Senior partner
Sparlex JSC
Poronyuk I.B. ______________Sparlex Attorneys at Law received a request from individual entrepreneur Yulia Viktorivna Romaniv (hereinafter referred to as the Client) to provide a legal opinion on the issues previously discussed with the Client.
In this regard, we would like to inform you of the following:
Pursuant to Article 9 of the Law of Ukraine “On Protection of Consumer Rights”, a consumer has the right to exchange a non-food product of good quality for a similar product from the seller from whom it was purchased if the product does not satisfy him/her in terms of shape, size, style, colour, size or for other reasons cannot be used for its intended purpose.
The consumer has the right to exchange goods of good quality within fourteen days, not counting the day of purchase, unless a longer period is announced by the seller.
Goods of good quality shall be exchanged if they have not been used and if their presentation, consumer properties, seals, labels, as well as the payment document issued to the consumer together with the goods sold, or a QR code displayed on the display of the software registrar of payment transactions (display of the device on which the software registrar of payment transactions is installed), which allows the consumer to read it and identify it with the payment document according to the structure of the data contained therein, or an electronic
The list of goods that are not subject to exchange (return) on the grounds specified in this Article is approved by the Cabinet of Ministers of Ukraine.
If at the time of the exchange a similar product is not on sale, the consumer has the right to either purchase any other products from the available range with the corresponding recalculation of the cost, or to terminate the agreement and receive a refund in the amount of the cost of the returned product, or to exchange the product for a similar product as soon as the product is put on sale. The seller is obliged to notify the consumer who requests the exchange of goods on the day the goods are put on sale.
Upon termination of the sale and purchase agreement, settlements with the consumer are made on the basis of the value of the goods at the time of purchase. The money paid for the goods shall be returned to the consumer on the day of termination of the agreement, and if it is impossible to return the money on the day of termination of the agreement, at another time agreed by the parties, but not later than within seven days.
Therefore, goods of good quality are subject to exchange within 14 days from the day following the date of purchase, provided that the following circumstances exist
It should be noted that the consumer does not have the right to return goods of good quality if the seller has a similar product. In this case, the buyer can only exchange the purchased goods for similar goods of a different shape, size, colour, style, dimensions, etc.
In the absence of similar goods, the consumer has the right to exchange the goods for other goods from the available assortment with the corresponding recalculation of the cost or to terminate the sale and purchase agreement and receive a refund in the amount of the cost of the returned goods.
Therefore, I recommend that consumers who want to return the purchased goods should be required to provide a specific reason for returning (exchanging) the goods.
If the goods have been used, the consumer should be refused the return of the goods.
Resolution of the Cabinet of Ministers of Ukraine No. 172 dated 19.03.1994 “On Implementation of Certain Provisions of the Law of Ukraine “On Protection of Consumer Rights” approved the list of goods of good quality in accordance with Annex No. 3, which are not subject to exchange (return) if they do not satisfy consumers for any reason.
Annex 3 of the above Resolution provides for the following List of Goods of Good Quality that are not subject to exchange (return):
Thus, goods intended for children under the age of 1 (one) year are considered to be goods for infants and are not subject to return.
Consumers have the right to exchange (return) purchased candles, as they are not included in the list of non-returnable goods, unless the candle is a perfume and cosmetic product (n.d.: scented candles).
In addition, pursuant to Article 13(5)(3) of the Law of Ukraine “On Protection of Consumer Rights”, unless otherwise provided by the agreement, a consumer has no right to terminate an agreement concluded at a distance if the agreement relates to the manufacture or processing of goods at the request of the consumer, i.e. if the goods cannot be sold to other persons or can be sold only with significant financial losses for the seller (contractor).
A contract concluded at a distance is a contract concluded by the seller (contractor) with the consumer by means of remote communication.
Thus, the consumer cannot return the goods if such goods are made to order, if the order is made by means of remote communication (e.g., via a website, social networks, etc.) and the goods cannot be sold to other persons (e.g., the ordered goods contain personalised inscriptions; the model, shape of the goods are not serialised but made specifically to order, etc.)
According to part 3 of Article 4 of the Law of Ukraine “On Protection of Consumer Rights”, consumers are obliged to:
1) before starting to use the goods, carefully read the operating rules set out in the documentation for the goods provided by the manufacturer (seller, contractor);
2) if it is necessary to clarify the terms and conditions of use of the goods, before using the goods, seek clarification from the seller (manufacturer, contractor) or other person specified in the operating documentation who performs their functions;
3) use the goods in accordance with their intended purpose and comply with the conditions (requirements, norms, rules) established by the manufacturer of the goods (contractor) in the operational documentation;
4) in order to prevent negative consequences of the use of the goods for the consumer, use the safety equipment provided by the manufacturer in the goods in compliance with the special rules provided for in the operational documentation, and in the absence of such rules in the documentation, adhere to the usual reasonable safety measures established for goods of this kind.
The analysis of the above consumer obligations shows that the consumer is obliged to use the goods in accordance with the operating conditions, the rules for using the goods in accordance with their intended purpose and in accordance with the conditions established by the manufacturer.
Ukrainian legislation does not contain a definition of the term “kryzhma” or “kryzhmo” and does not refer it to any category of goods.
Therefore, it is the manufacturer of the goods that determines the procedure for using the goods and their intended purpose.
In this regard, I believe that baptismal clothes and kryzhma can be classified as goods for babies if they are intended for children under the age of 1.
In addition, the baptismal bibs can be classified as bed linen, given their purpose.
In order to avoid disputes regarding the return of goods, I recommend that you
Senior Partner
Speerlex Law Firm
Poronyuk I.B. ______________
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