Commentary to the articles of Paragraph 1 of the General Provisions on Purchase and Sale of Chapter 25 of the Civil Code of the Republic of Kazakhstan  

The contract of sale is the most common contract in property turnover. The transition to market principles and the emergence of new market relations in property turnover that were unknown and unacceptable to the planned economy and its legal regulation (for example, the principle of determining the price and term of the contract in the absence of an agreement on them, the involvement of new types of property in property turnover - the purchase and sale of enterprises, the transfer of rights to use branded names of the legal entity, trademark, and the emergence of new institutions of contract law - leasing, factoring, etc.), led to the need to update the norms of civil legislation on certain types of obligations, including purchase and sale.  

The Civil Code has considered a number of issues of the legal regulation of sales in a fundamentally new way, which was the result of extensive use of the experience of international regulation of sales relations, including the provisions of the Vienna Convention of 1980. In particular, the provisions of the Vienna Convention are reflected in the Civil Code when setting out issues of price, the term of the contract, the seller's obligation to transfer goods free from the rights of third parties, etc.  

The Civil Code has significantly expanded the legal regulation of certain, most common and most important types of purchase and sale agreements. Thus, paragraphs 2-6 of the commented chapter provide for such types of purchase and sale obligations (and, accordingly, types of purchase and sale agreements) as retail sale, supply of goods, contracting, electricity supply, and sale of an enterprise. At the same time, special features may be provided for certain types of purchase and sale agreements, in comparison with the general provisions, in particular, on essential conditions, consequences of the transfer of goods of inadequate quality, etc. The general rules on purchase and sale apply in this case, unless the special rules of the Civil Code on certain types of purchase and sale provide for the specifics of legal regulation. It should be borne in mind that the specifics of the purchase and sale of individual goods may be provided for by legislation or other regulatory acts only in cases provided for by the Civil Code or legislative acts. In particular, the possibility of establishing the specifics of the purchase and sale of securities is provided for by the Civil Code, and only at the level of legislative acts.  

At the same time, in property turnover, it is possible to apply many modifications of the purchase agreement other than those provided for in paragraphs 2-6 of the commented chapter, to which the general provisions on purchase and sale should certainly apply. It is possible to conclude contracts that are superficially similar, but do not fall under the definition of the Civil Code on certain types of purchase and sale agreements. In this case, the rules provided for in paragraph 1 of the commented chapter should also apply to the purchase and sale relationship.

The Civil Code reproduces the traditional definition of a purchase and sale agreement for the legislation of the Republic of Kazakhstan. Under the contract of sale, the seller undertakes to transfer ownership (economic management, operational management) of the item to the buyer, and the buyer undertakes to accept this item and pay a certain amount of money for it (Clause 1 of Article 406 of the Civil Code).  

At the same time, the Civil Code has significantly expanded the range of property relations in the application of this institution of law. Thus, in accordance with the rules of the commented chapter, the general provisions on the purchase and sale of securities and currency valuables also apply to the purchase and sale of securities and currency valuables, unless legislative acts provide for special rules for their purchase and sale (paragraph 2 of Article 406 of the Civil Code). This norm, which extends the general provisions on the purchase and sale of securities and currency valuables to relations for the acquisition of securities and currency valuables, is formulated in the absence of special legal regulation for the purchase and sale of such valuables or the absence of legal regulation of certain aspects of such relations. Undoubtedly, the relationship between the purchase and sale of these values, in the part that does not have the specifics of legal regulation in the form of special rules fixed in legislative acts, will fall under the regulation of the commented paragraph.  

The general provisions on purchase and sale also apply to the sale of property rights, unless this contradicts the content or nature of these rights (paragraph 3 of Article 406 of the Civil Code). Although property rights do not apply to things and goods, the Civil Code extends the rules on purchase and sale to cases of retaliatory assignment of property rights. The application of the general provisions on purchase and sale to the paid assignment of property rights should be carried out by analogy, due to the absence of special rules governing, for example, issues of price, terms of contract, liability of the parties, etc. At the same time, it must be recognized that not all cases of paid assignment of property rights are applicable by analogy to the norms of the general provisions on purchase and sale, and this issue must be resolved in each specific case, taking into account the content and nature of property law. For the most part, the provisions on purchase and sale apply to the paid assignment of intellectual property rights - rights to the results of intellectual creative activity and equivalent means of individualization of a legal entity, products of an individual and a legal entity, works or services performed by them (brand name, trademark, service mark, etc.). At the same time, the provisions on purchase and sale are not applicable to the paid assignment of binding rights arising from contracts for the production of works and services, to which the general provisions of the Civil Code on the change of persons in an obligation should apply, or, if necessary, the relevant provisions of the Civil Code on financing for the assignment of a monetary claim (factoring).  

It should be noted that the general provisions on purchase and sale apply to certain types of this agreement, unless paragraphs 2-6 of the commented chapter establish other rules.  

The purchase and sale agreement is, as a general rule, bilateral, reimbursable, consensual.  

The subject of purchase and sale may be a product defined by the Civil Code as any negotiable item (Clause 1 of Article 407 of the Civil Code). At the same time, there are no obstacles to the use of a limited-marketable item as the subject of a contract of sale, subject to the rules for their alienation and acquisition - the alienation and acquisition of these items by proper persons who have the right or special permission to possess a limited-marketable item. At the same time, it should be borne in mind that, by analogy, property law, for example, related to intellectual property, can act as a subject.  

A purchase and sale agreement can be concluded, as a general rule, both with respect to things available to the seller, and with respect to things that will be created or acquired by him in the future, which assumes the seller as the owner of the goods, the ownership of which arose through the purchase of goods from third parties or as a result of self-manufacturing of this product, as well as an intermediary represented by wholesale and retail trade organizations (Clause 2 of Article 407 of the Civil Code). This provision is compensatory in case legislative acts do not establish other rules for certain types of purchase and sale agreements, or if this does not contradict the nature of the goods. Thus, a purchase and sale agreement cannot be concluded with respect to a house that does not exist, but which must be built. Prior to the registration of the house as real estate in the name of the seller, the purchase and sale agreement will have the characteristics of a preliminary agreement with all the consequences that follow from this. If the house is initially intended for a person acting as a buyer, that is, if, from the moment of completion of construction, the house must be registered in the name of this person, then these relations generally do not fall under the norms of the Civil Code on purchase and sale, and they must be regulated by other norms of the Civil Code on obligations, in particular, the norms on contract or the provision of paid services.  

The essential terms of a purchase and sale agreement are, as a general rule, the terms of the item - the product in respect of which the agreement is concluded, and its quantity, which determine the condition of the product agreement. In accordance with the Civil Code, a condition on a product is considered fulfilled if it allows determining its name and quantity (Clause 3, Article 407 of the Civil Code). This provision must be understood taking into account the division of things into individually defined and defined generic characteristics. When using an individually defined item as a condition of the subject of the purchase agreement, it is necessary to determine all the necessary features of the item to distinguish it from similar items. For example, when buying and selling a certain car, it is necessary to indicate its specific characteristics, in particular, the chassis number or the registration plate with the State Traffic Inspectorate. At the same time, when purchasing a thing defined by generic characteristics, it is necessary to specify such characteristics that allow you to specifically understand what things are in question. In particular, these may be qualitative or other characteristics, for example, the subject of purchase and sale may be not just a grain of wheat, but grain of a certain class, located in a certain storage or in another place, etc. At the same time, it should be borne in mind that for certain types of purchase and sale agreements, some other conditions may also apply to essential conditions, for example, the term in the delivery agreement, the price when purchasing goods on credit subject to installment payment, etc.  

The main obligation of the seller under the contract of sale is the transfer to the buyer of a specific product - the subject of the contract, determined by agreement of the parties (paragraph 1 of art.408 of the Civil Code). In cases where the subject of the contract has accessories, determined in accordance with art. 122 of the Civil Code, or related documents provided for by regulatory legal acts, including legislative acts or a contract (for example, certificates of conformity, quality, safety, normative and technical documents on quality, completeness, technical data sheet, etc.), the seller is automatically obligated to transfer both these accessories and documents simultaneously with the transfer of the subject of the contract (Clause 2, Article 408 of the Civil Code).  

The seller is obliged to deliver the duly agreed goods within a certain period of time. The deadline for the transfer of goods is usually stipulated by the purchase and sale agreement. The absence of a term in the contract does not affect, as a general rule, its validity, since in this case the general rules on the fulfillment of obligations provided for in Article 277 of the Civil Code (paragraph 1 of Article 409 of the Civil Code) may be applied. However, it must be borne in mind that for certain types of purchase and sale agreements, for example, for the supply or sale of goods on credit subject to installment payment, as well as at the request of one of the parties, the deadline for fulfilling the seller's obligation to transfer the goods may be an essential condition requiring agreement between the parties and reflection in the purchase and sale agreement.  

The provisions of the Civil Code on the deadline for the seller to fulfill the obligation to transfer the goods are formulated dispositively, allowing, by agreement of the parties, to provide for any procedure. The agreement of the parties may provide for the fulfillment of obligations within a strictly defined period, the consequence of which is the impossibility of early fulfillment of this obligation by the seller (paragraph 2 of art.409 of the Civil Code).  

The agreement of the parties may provide for the fulfillment of the obligation to transfer the goods by the seller within a certain period of time, which results in the possibility for the seller to fulfill this obligation at any time during the period specified in the contract.  

The absence of a deadline presupposes the fulfillment of the seller's obligation to transfer the goods within a reasonable time, which must be determined on a case-by-case basis, taking into account all the circumstances determining this reasonableness.  

The contract or legislative acts for certain types of purchase and sale agreement may provide for the execution of the purchase and sale agreement in parts, and, accordingly, the seller's obligation to partially transfer the goods within certain interim periods, if there is or is not a general term in the contract, determined by both a calendar date or event, and a period of time (paragraph 2 409 of the Civil Code).  

At the same time, with any method of determining the deadline for the seller to fulfill the obligation to transfer the goods, the contract may directly or based on its other terms provide for such consequences of the seller's delay in fulfilling this obligation as the loss of the buyer's interest in fulfilling the contract. In this case, the seller is obliged to transfer the goods within the deadline specified in the contract, or within another reasonable period for the specific case of purchase and sale after the conclusion of the contract, and in case of delay, the seller is obliged to obtain the buyer's consent to fulfill the overdue obligation. Unless otherwise provided in such an agreement, then, in accordance with the general provisions on purchase and sale, the presumption of the impossibility and early fulfillment by the seller of the obligation to transfer the goods without the consent of the buyer is also provided for in the case in question.  

The moment when the seller fulfills the obligation to transfer the goods is of great importance for determining the proper fulfillment of the seller's obligation. As a rule, the time of fulfillment of the obligation to transfer goods is determined depending on the specific terms of the contract and can be associated with both the actual transfer of goods and symbolic, for example, the transfer of a document of title (bill of lading, warehouse certificate, etc.), apartment keys, car, etc. At the same time, the Civil Code provides for the following compensatory rules for determining this point in the absence of special conditions for this in the contract (paragraph 1 of Article 410 of the Civil Code). If the contract provides for the seller's obligation to deliver the goods, then the moment of fulfillment of the seller's obligation to transfer the goods is considered to be the delivery of the goods to the buyer or the person indicated by him. If the terms of the contract provide for the transfer of the goods at its location, then the moment of fulfillment of the seller's obligation to transfer the goods is considered to be the provision of the goods at the disposal of the buyer or the person indicated by him. If the contract does not contain the seller's obligation to deliver the goods or conditions for the transfer of the goods at its location, then the moment of fulfillment of the seller's obligation to transfer the goods is considered to be the transfer of the goods to the carrier or the communication organization for its delivery to the buyer.  

The general provisions on purchase and sale, which provide for such a way of determining the moment of fulfillment of an obligation as placing goods at the disposal of the buyer, are new to the legal regulation of this type of obligation. The fact that the goods are placed at the disposal of the buyer without any actual transfer is considered to be the proper fulfillment of the seller's obligation to transfer the goods. In this case, the buyer's failure to accept the goods is nothing more than the creditor's delay with all the resulting adverse consequences for him. In this case, the goods are considered to have been placed at the disposal of the buyer or the person indicated by him if the terms of the contract of sale provided for the transfer of the goods at its location and if the buyer was aware of the readiness of the goods for transfer. In some cases, when the terms of the contract of sale have already determined the timing of the transfer of the goods, for example, a transfer schedule is provided, the buyer's information is not required. In cases where the requirements of the legislation for the purchase and sale of certain types of goods, or the agreement of the parties presupposes mandatory labeling or other identification of the goods, packaging, or other actions to prepare the goods (for example, special requirements for containers, etc.), the goods are not considered ready for transfer until the necessary requirements of the legislative act or agreement of the parties are fulfilled, and made available to the buyer.  

The moment when the seller's obligation to transfer the goods is fulfilled is important both for determining the moment when the buyer's ownership right arises, since the seller's main obligation is to transfer the goods defined by the contract to the buyer's ownership (economic management, operational management), and for determining the transfer of the risk of accidental death or accidental damage (see paragraph 1 of Article 411 of the Civil Code).  

In accordance with Article 238 of the Civil Code, the right of ownership arises from the acquirer under the contract from the moment of transfer of the thing, and in this case, the moment of transfer of the goods is, as a general rule, crucial for determining the moment of ownership. At the same time, it should be borne in mind that otherwise may be provided for by a legislative act or a contract, and in these cases, the moment of fulfillment of the seller's obligation to transfer the goods may not matter for determining the moment when ownership rights arise. In particular, the emergence of ownership rights may not be related to the actual transfer of a thing, but to registration due to the requirement of a legislative act on mandatory registration of ownership of certain types of property and the emergence of this right only from the moment of such registration (the emergence of ownership rights after the actual transfer). There may be situations where ownership by agreement of the parties may arise before the actual transfer, for example, at the time of a symbolic transfer, etc.  

The risk of accidental death is usually borne by the owner of the item. The emergence of the buyer's ownership of the goods entails, as a general rule, the transfer to it of the risk of accidental loss of the goods, and in this case, the moment when the seller fulfills the obligation to transfer the goods is important for determining the transfer of the risk of accidental loss or accidental damage. It is with the fulfillment by the seller of his obligation to transfer the goods that the transfer of the risk of accidental death or accidental damage to the goods is associated.  

At the same time, the rules on the transfer of the risk of accidental death or accidental damage provided for in Article 190 of the Civil Code are formulated dispositively, allowing for cases when a different procedure for the transfer of the risk of accidental death or accidental damage is established by virtue of a legislative act or agreement of the parties to a contract. In this case, the moment when the seller fulfills the obligation to transfer the goods may not have any significance for determining the moment when the risk of accidental loss or accidental damage to the goods passes. It is possible to transfer risks both before the emergence of ownership rights, and after the emergence of ownership rights, or not at all in connection with this, for example, when assigning the risk of accidental death to the carrier, etc.  

The general provisions on the purchase and sale of the Civil Code contain a compensatory norm for such a special case as the purchase and sale of goods in transit (paragraph 2 of art.411 of the Civil Code). In this case, unless otherwise provided by the contract or business practices, it is assumed that the risk of accidental death will pass from the moment the contract is concluded.  

In accordance with Article 238 of the Civil Code, the right of ownership arises from the acquirer under the contract from the moment of transfer of the thing, and in this case, the moment of transfer of the goods is, as a general rule, crucial for determining the moment of ownership. At the same time, it should be borne in mind that otherwise may be provided for by a legislative act or a contract, and in these cases, the moment of fulfillment of the seller's obligation to transfer the goods may not matter for determining the moment when ownership rights arise. In particular, the emergence of ownership rights may not be related to the actual transfer of a thing, but to registration due to the requirement of a legislative act on mandatory registration of ownership of certain types of property and the emergence of this right only from the moment of such registration (the emergence of ownership rights after the actual transfer). There may be situations where ownership by agreement of the parties may arise before the actual transfer, for example, at the time of a symbolic transfer, etc.  

The risk of accidental death is usually borne by the owner of the item. The emergence of the buyer's ownership of the goods entails, as a general rule, the transfer to it of the risk of accidental loss of the goods, and in this case, the moment when the seller fulfills the obligation to transfer the goods is important for determining the transfer of the risk of accidental loss or accidental damage. It is with the fulfillment by the seller of his obligation to transfer the goods that the transfer of the risk of accidental death or accidental damage to the goods is associated.  

At the same time, the rules on the transfer of the risk of accidental death or accidental damage provided for in Article 190 of the Civil Code are formulated dispositively, allowing for cases when a different procedure for the transfer of the risk of accidental death or accidental damage is established by virtue of a legislative act or agreement of the parties to a contract. In this case, the moment when the seller fulfills the obligation to transfer the goods may not have any significance for determining the moment when the risk of accidental loss or accidental damage to the goods passes. It is possible to transfer risks both before the emergence of ownership rights, and after the emergence of ownership rights, or not at all in connection with this, for example, when assigning the risk of accidental death to the carrier, etc.  

The general provisions on the purchase and sale of the Civil Code contain a compensatory norm for such a special case as the purchase and sale of goods in transit (paragraph 2 of art.411 of the Civil Code). In this case, unless otherwise provided by the contract or business practices, it is assumed that the risk of accidental death will pass from the moment the contract is concluded.  

At the same time, the Civil Code provides for other consequences if, at the time of conclusion of the contract for the purchase and sale of goods in transit, the seller knew or should have known that the goods were lost or damaged. The condition on the transfer of the risk of accidental death or accidental damage to the buyer from the moment of conclusion of the contract may be declared invalid upon the latter's application if it proves that at the time of conclusion of the contract for the sale of goods in transit, the seller knew or should have known that the goods were lost or damaged, but nevertheless sold the product to the buyer without warning about the damage, or sold the lost product. In the latter case, the seller remains obligated to the buyer to fulfill the contract of sale.  

Under the terms of the contract, ownership (economic management, operational management) may pass to the buyer before the transfer of the goods, for example, during the symbolic transfer of the goods, etc. In this case, the seller is required to preserve the goods until the actual transfer, which should manifest itself in taking all necessary measures to prevent its deterioration. As a general rule, the buyer is obliged to reimburse the seller's actual costs incurred by him for the maintenance and preservation of the goods before the transfer of the sold goods. The last rule is dispositive. A different procedure for reimbursement of costs when the seller retains the sold goods before the actual transfer may be provided for by agreement of the parties (art. 412 of the Civil Code).  

The Civil Code has formulated in a new way the obligation to transfer goods free from the rights of third parties. If in the previously existing civil legislation the seller was obliged, at the conclusion of the contract, only to warn the buyer about all the rights of third parties to the thing being sold, then the commented chapter explicitly and imperatively provides for the requirement for the object of sale at the time of its transfer by the seller to the buyer, according to which the subject of sale can only be goods free from the rights of third parties, including claims (claims) of third parties, which the seller knew or should have known at the time of transfer (art. 413 CC). These provisions, as well as the rules on the consequences of fulfilling or not fulfilling the seller's obligation in question, are an example of taking into account the experience of international sales relations (similar rules, in particular, are contained in Articles 41-44, 50 of the Vienna Convention on Contracts for the International Sale of Goods of 1980), which makes it possible to bring Kazakhstan's legislation closer to global legal practice (paragraph 1 of Article 413 of the Civil Code).  

Only with the consent of the buyer can goods burdened with the rights of third parties be transferred to him, including the claims of third parties, which can be recognized in accordance with the established procedure later, which implies the seller's obligation to obtain the buyer's consent to the purchase and sale of such goods. This rule applies to cases when, at the time of conclusion of the contract, the seller intended to sell the goods encumbered by the rights of third parties. In this case, he is obliged to obtain consent from the buyer to sell such goods to him. Failure by the seller to fulfill the obligation to sell and transfer goods free from the rights (claims) of third parties, and, accordingly, the obligation to obtain the seller's consent to buy or accept such goods, provides the latter with the opportunity to demand changes in the terms of the contract to reduce the price of the goods or termination of the contract of sale and compensation for losses. The buyer is deprived of this right in cases where he knew or should have known at the conclusion of the contract or acceptance of the goods about the rights of third parties to the purchased goods and if this is proved (paragraph 1 of art.414 CC). In the case of claims (claims) of third parties to the purchased goods, the buyer's claims for price reduction or termination of the contract and compensation for damages are satisfied, unless the seller proves that he did not know about such claims of third parties at the time of the conclusion of the contract or at the time of the transfer of the goods.  

If a claim is brought against the buyer for the seizure of the goods on the grounds that arose before its transfer, the buyer is obliged to involve the seller in the case under pain of possible adverse consequences of non-fulfillment of this obligation (paragraph 1 of art.415 of the Civil Code). Failure to involve the seller in the case may deprive the buyer of the right to compensation for losses incurred in connection with the seizure of the purchased goods, if the seller of the goods subsequently proves that by participating in the case, he could have prevented the seizure of the goods from the buyer (paragraph 2, art.415 CC). Failure by the seller to participate in the case, when the buyer has taken all necessary actions to involve the seller in the case, deprives the latter of the right to prove the wrongness of the buyer's conduct of the case and assumes his responsibility to the buyer for the seizure of the goods (paragraph 3, art.415 CC).  

Accordingly, taking into account the above rules, in the event of seizure in accordance with the established procedure (recovery from illegal possession, seizure of the pledged object and foreclosure on it, etc.) of the goods transferred to the buyer (and acquired by him) by third parties (in the case of the exercise of rights arising from encumbrances, or recognition of legitimate claims to the object of sale) according to for reasons that arose prior to the acceptance of the goods by the buyer, the seller who has not fulfilled the obligation to transfer the goods, is free from the rights and claims of third parties, or has not received the buyer's consent to accept such goods, is obliged to reimburse the buyer for the losses incurred by him (clause 1 of art. 414 of the Civil Code).  

In accordance with the general provisions on purchase and sale, it is not allowed to release the seller from this liability by agreement of the parties, and any such agreement is invalid (paragraph 2 of art.414 of the Civil Code).  

At the same time, if third parties seize goods from the buyer for reasons that arose before the execution of the purchase and sale agreement, as well as if the buyer fails to participate in the case, when the buyer has taken all measures to involve him in the case, the seller is released from liability for damages if he proves that at the conclusion of the contract or Upon acceptance of the goods, the buyer knew or should have known about the existence of grounds on which the goods were subsequently withdrawn from him - encumbrances or claims of third parties on the subject of purchase and sale. This exception is a development of the provisions on the procedure for determining the fulfillment of the seller's obligation to transfer goods free from the rights of third parties. If the buyer consented to purchase goods encumbered by the rights or claims of third parties, including if the buyer accepted the goods knowing or when he should have known about the encumbrances of the goods, then there can be no buyer's liability (paragraph 3 of Article 413 of the Civil Code).  

273 of the Civil Code, the general provisions on purchase and sale provide for a case in which the buyer has the right to unilaterally refuse to fulfill obligations under the contract of sale - if the seller refuses to transfer the goods (paragraph 1 of Article 416 of the Civil Code). It should be borne in mind that the seller's refusal to fulfill his obligation to transfer the goods is a violation of the terms of the contract and entails liability for him to compensate the buyer for losses caused by such a violation, in accordance with the general rules on civil liability provided for, in particular, art. 354 of the Civil Code. If the subject of the purchase and sale agreement is an individually defined thing, the buyer has the right either, according to the general rules, to refuse to perform the contract and claim damages (including with the application of the rules of art. 356 CC), or to demand the withdrawal and transfer of the goods in accordance with the rules provided for in Art. 355 CC, and to claim damages caused by the delay in the fulfillment by the seller of the obligation to transfer the goods (paragraph 2 of art.416 of the Civil Code).  

In case of delay or refusal to transfer accessories or other documents related to the goods by the seller in violation of the terms of the contract or the requirements of legislative acts for certain types of purchase and sale, the buyer has the right to demand them and is obliged to provide the seller with a reasonable time for their transfer (paragraph 1 of art. 417 of the Civil Code). If the seller fails to fulfill the obligation to transfer accessories and documents within this reasonable period, the buyer has the right to refuse to accept the goods, unless otherwise provided by the contract. In this case, the buyer's refusal to accept the goods causes consequences and liability of the seller, similar to the case of non-fulfillment by the seller of the obligation to transfer the goods (paragraph 2 of art.417 of the Civil Code).  

The conditions on quantity, assortment, quality, completeness, packaging and packaging are conditions directly related to the seller's obligation to transfer the goods to the buyer. Failure to fulfill or improper fulfillment of these conditions shall entail the buyer's liability if the buyer complies with the procedure for notifying the seller of improper fulfillment of the contract. The buyer is obliged to notify the seller of a violation of the terms of the contract on the quantity, assortment, quality, completeness, packaging and (or) packaging of the goods within the time period provided for by the Civil Code, legislative acts, other regulations or the contract. If such a period is not specified in the regulations or in the contract, the buyer is obliged to notify the seller of violations of the terms of the contract within a reasonable time after the violation of the relevant terms of the contract should have been discovered, based on the nature and purpose of the goods (paragraph 1 of art. 436 CC). Violation of the procedure for notifying the seller of improper performance of the contract gives the seller the right to refuse to satisfy the buyer's claims in whole or in part, unless the late notification resulted in the inability to satisfy the buyer's claims or entails disproportionate costs for the seller compared to those that he would have incurred if the buyer had notified him of violations of the terms of the contract in a timely manner (Clause 2, Article 436 of the Civil Code). The rule on the seller's refusal to satisfy the buyer's claims in case of violation by the latter of the procedure for notification of improper performance of the contract does not apply if the seller knew or should have known that the goods transferred to the buyer did not comply with the terms of the contract (clause 3 of art.436 of the Civil Code).  

The seller is obliged to transfer the goods to the buyer in the quantity specified in the contract (art. 418 CC). The quantity of the product, together with the name, determines the subject of the contract in respect of which the contract is concluded. The name of the product and its quantity refer to the essential terms of the purchase and sale agreement, which require mandatory approval by the parties. The freedom of contract to determine by agreement of the parties the quantity of goods under the contract of sale in some cases on the basis of legislative acts may be limited in relation to the seller engaged in entrepreneurial activity. An example of this is the restrictions imposed by natural monopolists, as well as other persons who occupy a dominant position in the market of goods.  

The quantity of goods can be determined in the contract in physical terms in a fixed amount in various units of measurement, depending on the properties of the goods (piece by piece, in meters, grams, watts or other units of measurement), in monetary terms (the quantity of goods for a certain amount of money) or otherwise by agreeing on the procedure for determining the quantity of goods (for example, the subject of the contract may be the next year's harvest, the amount of heat or electricity determined based on the meter readings for its consumption). In this case, the quantity condition is also considered agreed upon if the parties reach an agreement on the procedure for determining it without defining the quantity itself in natural units of measurement, allowing to determine the quantity of goods to be transferred. The terms of the purchase and sale agreement, usually long-term, may also provide for the quantity of goods subject to periodic transfer to the buyer, for example, according to the schedule of partial transfer, delivery of goods, etc.  

Violation by the seller of the terms of the contract on the quantity of goods entails the liability of the latter in accordance with the general rules of the Civil Code on liability for breach of obligations provided for in Articles 349-366 of the Civil Code. In particular, the buyer has the right to demand proper performance of the obligation, compensation for losses, and to take actions to obtain performance at the expense of the seller who has performed his duties improperly. If, according to the terms of the contract, the subject of sale is an individually defined thing, the buyer also has the right to claim it in accordance with the rules of art. 355 of the Civil Code.  

In addition, if the goods are transferred to the buyer in violation of the terms of the contract in a smaller quantity, the buyer has the right to refuse the transferred goods and their payment, and in cases of payment (partial payment) - to demand a refund of the amount of money paid for it (paragraph 1 of art. 419 of the Civil Code). The buyer's refusal of the transferred goods and their payment does not deprive him of the right to claim damages caused to him as a result of the withdrawal from the contract. The seller's delay in returning the amount of money paid by the buyer upon his refusal of the transferred goods is the basis of his liability to the buyer in accordance with art. 355 of the Civil Code. The rules on the possibility of the buyer's refusal of the transferred goods and their payment when the seller transfers the goods in a smaller quantity are applied in cases where the contract does not explicitly provide for the impossibility of such refusal.  

The transfer of goods by the seller in a larger quantity than stipulated by the contract does not, as a general rule, oblige the buyer to accept and pay for the goods, nor does it condition his right to accept and pay for the goods, unless the contract provides otherwise (paragraph 2 of art. 419 of the Civil Code). The buyer is obliged, in accordance with the regulations or the contract, and in their absence, to notify the seller within a reasonable time, as a general rule, of the transfer of the goods to the latter in an amount exceeding that specified in the contract. The buyer has the right to accept goods that have been transferred to him in excess of the quantity stipulated in the contract, only if the seller has not disposed of them within a reasonable time after receiving the notification. In this case, the buyer pays for the accepted goods in an amount exceeding that specified in the contract at the price of the goods accepted in accordance with the terms of the contract, unless a different price for such goods is determined by agreement of the parties (clause 3, art.419 of the Civil Code).  

An assortment is a list of names of a homogeneous good (things defined by generic characteristics), indicating the number of its varieties in a certain ratio (quantitative by piece, percentage to each other, etc.), differing from each other in types, models, colors and other characteristics resulting from the properties of the product. The assortment condition is accidental, that is, it is not an invariably present condition of the purchase and sale agreement, provided either by agreement of the parties, or in cases where the need for this condition arises from the nature of the obligation, for example, the purchase by an auto repair company of a batch of spare parts for cars, the purchase by a retailer of a batch of clothing, etc. At the same time, the assortment condition is directly related to the quantity condition of the product, and therefore, since it is provided for in the contract of sale, or if the assortment condition follows from the substance of the obligation, it must be agreed upon by the parties and refers to such a contract as an essential condition with all the consequences that follow from this, in in particular, the recognition of a contract that provides for the agreement of the parties on the assortment of the object of sale, etc., as not concluded (art. 420 of the Civil Code).  

Violation of the terms of the assortment entails, with some peculiarities arising from the substance of the terms of the assortment, consequences similar to violation of the terms of the quantity of goods (paragraph 1 of art. 421 of the Civil Code). At the same time, it should be borne in mind that the rules provided for in art. 321 of the Civil Code on the seller's liability for violation of the terms of the assortment are, firstly, dispositive, and they apply in cases unless otherwise provided by the contract of sale (paragraph 6 of art. 421 CC), and, secondly, do not exclude the liability of the seller in accordance with the general rules of the CC on liability for breach of an obligation.  

Violation by the seller of the terms of the product range agreement entails the latter's liability in accordance with the general rules of the Civil Code on liability for violation of obligations provided for in art. 349-366 of the Civil Code, in particular, the buyer has the right to demand proper fulfillment of the terms of the contract and compensation for losses incurred by non-fulfillment or improper fulfillment of the terms of the quantity obligation, including payment of a penalty if it is provided for by legislative acts (for certain types of purchase and sale) or by the contract, to take actions to obtain fulfillment at the expense of an improperly fulfilled seller's responsibilities.  

The assortment is used when purchasing goods determined by generic characteristics, therefore, if the assortment conditions are not fulfilled or improperly fulfilled, the buyer does not have the right to claim the goods in accordance with the rules of art. 355 of the Civil Code.  

In addition to these general provisions of the Civil Code on liability for breach of an obligation, when the seller transfers goods in an assortment that does not comply with the contract (which may be in the form of a transfer of goods that either completely comply with the terms of the contract, or transfer, along with goods whose assortment complies with the terms of the contract, goods that do not comply with the terms of the assortment agreement), the buyer, as and in case of violation of the terms of the quantity, it has the right, unless otherwise provided by the contract, or to demand the replacement of goods that do not comply with the terms of the assortment agreement., either accept only the goods that comply with the terms of the assortment agreement, rejecting the rest of the goods, or refuse to accept the entire batch of goods, or accept the entire batch of goods that comply with or do not comply with the terms of the assortment agreement (Clause 2, art. 421 of the Civil Code).  

In case of refusal to accept the entire batch of goods, or refusal of goods that do not comply with the terms of the agreement, or a request for replacement of goods that do not comply with the terms of the assortment agreement, the buyer also has the right, unless otherwise provided by the agreement, to refuse to pay for it, and if payment has been made, the buyer has the right to demand a refund of the amount of money paid (paragraph 3 of Article 421 of the Civil Code). Refusal of goods in whole or in part that do not comply with the terms of the assortment does not deprive the buyer of the right to recover a penalty from the seller, if it is provided for by legislative acts or the terms of the contract, and losses incurred in connection with the seller's violation of the terms of the contract of sale, and in case of a demand for replacement of goods - recovery of losses incurred in connection with with a delay in the transfer of the goods, or a penalty, if it is provided for by legislative acts or the terms of the contract.  

The refusal to accept goods that do not comply with the terms of the assortment agreement, as well as the refusal to accept the entire batch of goods in case of partial or complete non-compliance with the terms of the assortment, as well as the requirement to replace goods that do not comply with the assortment agreed upon in the agreement, must be declared by the buyer within a reasonable time after receipt of the goods. (paragraph 4 of Article 421 of the Civil Code). Otherwise, if the refusal is not notified or replacement requirements are not submitted, as well as if the deadline for such notification is overdue, the goods are generally considered accepted by the buyer (Clause 5, Article 421 of the Civil Code).  

In cases where goods that do not comply with the terms of the assortment agreement are accepted by the buyer, they must be paid at the price agreed upon by the parties to the purchase agreement. As a general rule, the obligation to agree on the price lies with the seller, who must, unless otherwise stipulated by the contract, take the necessary measures to agree on the price within a reasonable time after the delivery of the goods and acceptance of the goods by the buyer. Failure by the buyer to take measures to agree on the price of such goods gives the buyer the right, unless otherwise stipulated by the contract, to independently determine and pay the price of the goods based on the general compensatory norms of the Civil Code on the price in a reimbursable contract, when it is not provided for and cannot be determined based on the terms of the contract (Clause 3, art. 385 of the Civil Code), that is, to pay The goods are priced at the price that was usually charged for similar goods at the time of the conclusion of the contract under comparable circumstances (paragraph 5 of Article 421 of the Civil Code).  

The condition of completeness is directly related to the condition of the item of sale, just as the condition of the assortment is related to the condition of the quantity of the product. Completeness is recognized as a certain necessary set of components (the presence of all nodes, blocks, parts), characterized by the commonality of their functional purpose and ultimately determining the subject of purchase and sale itself (paragraph 1 of Article 431 of the Civil Code). Unlike accessories, the parts that make up the complete set are necessary for the direct use of the product for its intended purpose. As a rule, these parts contain a structurally inextricable link with the object of sale itself, which does not allow using the product defined as the subject of the contract without any component part included in the product package (in particular, the computer package includes a hard drive, the car package includes an engine, etc.). In most cases, the condition of completeness is determined by regulatory and technical documents defining a particular product (in particular, state, industry standards, manufacturer's technical documentation, etc.), and, as a rule, in this case it is enough only to identify the product, depending on which its completeness is determined in accordance with technical regulations (art.431 GK). At the same time, the terms of completeness can be reflected in the contract by specifying a specific normative act on standardization, and at the same time, the parties accept the requirements of such documents for the completeness of a particular product as contractual terms, or, much less frequently, by listing all the components of the product (completeness) in the contract.  

In particular, the computer package includes a monitor, a system unit, and a keyboard, without which it is impossible to use it. At the same time, it is possible to sell a computer, if it is stipulated in the contract (terms of sale of goods in the store) without a monitor, which can be sold separately. At the same time, when purchasing a computer (batch of computers), it is possible to reflect in the contract the conditions for completing the product in the form of a computer and a monitor, possibly with the addition of other components - a printer, scanner, etc., which do not form a single unit with the computer and are additional goods. In this case, we mean a set of goods - a computer with additional goods.  

The completeness and the set, having similar features, at the same time differ significantly from each other. If completeness is defined as a set of parts without which it is impossible to use the product for its intended purpose, while the totality is determined precisely by the essence of the product, and not only by the requirement of any party to the contract (by agreement of the parties, it is possible to change the terms of completeness, including the conditions provided for in regulatory and technical documents), then the set It is a set (item 1 of art . 432 CC), a rather arbitrary and conditional requirement of the buyer to combine into a single group of goods that are not related to each other by functional and constructive parameters (for example, a set of products purchased in a store, the purchase of a car complete with a trailer, etc.). The condition of the set is determined by agreement of the parties, mainly at the request of the buyer, and their the composition cannot be determined in any way and is not determined by any regulations, regulatory and technical documents, or business practices.  

There are various consequences in the case when the completeness or set of goods is not defined in the contract, but the seller's obligation to transfer the goods either in a certain completeness or in a certain set follows from the substance of the goods or the terms of the contract. The absence of completeness conditions in this case does not affect the validity of the contract in any way, since it can be determined either by business practices, or in accordance with existing technical and other standards for this product, or simply from the purpose and essence of the product. It is in the general provisions of the Civil Code on purchase and sale that the norm is contained that in the event that the completeness of the goods is not determined by the contract, the seller is obliged to transfer the goods to the buyer, the completeness of which is determined by business practices or other commonly imposed requirements (paragraph 2 of art. 431 of the Civil Code).  

If the contract does not specify a set of goods (the varieties of goods included in the set are defined, but the quantity of each of them is not determined, or the varieties of goods included in the set are not defined), but the seller's obligation to transfer the goods in the set follows from its terms, such a contract is considered not concluded or due to the failure to reach an agreement. according to the subject of the contract, if the list of goods included in the package is not defined, or as not conforming to the conditions on the quantity of goods, if the quantity of each variety of goods is not determined (clause 1 of Article 432 of the Civil Code).  

One of the features of the purchase and sale agreement, which provides for the transfer of goods in a set, is the dispositive rule on the seller's obligation to transfer the goods included in the set at the same time, unless otherwise provided by the contract or follows from the nature of the obligation (paragraph 2 of art. 432 CC). This rule follows from the provisions of the Civil Code on the moment of fulfillment of the obligation to transfer the goods in the set, the seller's obligation is considered fulfilled from the moment of transfer of all the goods included in the set.  

One of the features of the purchase and sale agreement, which provides for the transfer of goods in a set, is the dispositive rule on the seller's obligation to transfer the goods included in the set at the same time, unless otherwise provided by the contract or follows from the nature of the obligation (paragraph 2 of art. 432 CC). This rule follows from the provisions of the Civil Code on the moment of fulfillment of the obligation to transfer the goods in the set, the seller's obligation is considered fulfilled from the moment of transfer of all the goods included in the set.  

The consequences of violating the terms of completeness are similar to the consequences of violating the terms of quantity or assortment (Clause 1 of Article 433 of the Civil Code). The buyer has the right to choose: 1) require, depending on the nature of the violation of the completeness conditions: reduction of the purchase price, taking into account the cost of the incomplete part of the goods or the transfer of goods that do not meet the completeness conditions; completion of the goods within a reasonable time; replacement of the incomplete goods with a complete one; 2) refuse to execute the contract, and if the purchase price has been paid, also demand a refund of the amount of money paid. In this case, the buyer, in accordance with the general provisions on liability for breach of an obligation, is certainly entitled to claim damages caused by violation of the terms of the completeness agreement. Thus, upon presentation of claims for reduction of the purchase price, for completion, replacement of incomplete goods with a complete one, the buyer also has the right to recover damages caused by late performance, or penalties for the delay, if it is provided for by the contract. Refusal to perform the contract does not deprive the buyer of the right to recover damages incurred in connection with the non-performance of the contract. The buyer has the right, if the seller violates the terms of completeness, to take measures to fulfill the obligation by third parties at the seller's expense.  

Violation of the terms of the package entails the same consequences as in case of violation of the terms of completeness, unless otherwise provided by the contract or follows from the nature of the obligation (paragraph 2 of art. 433 CC). In particular, if the seller's obligation to transfer the goods in a set follows from the contract, at the same time, if it is impossible to determine from the terms of the contract in which specific set the goods should be transferred, then such an agreement is invalid, and it is impossible to apply the rules on violation of the terms of completeness to it, in order to fill in the missing conditions of which the rules may be applied business custom, technical requirements of GOST standards, other standards, etc.  

Certain obligations of the seller related to the transfer of the goods to the buyer are essential for the contract of sale. One of the obligations of the seller related to the transfer of goods is the transfer of goods of proper quality. The quality of the product is considered appropriate if it complies with the terms of the purchase and sale agreement (Clause 1, Article 422 of the Civil Code). One of the key rules about the quality of the goods is that the goods must comply with the terms of the quality agreement at the time of its transfer to the buyer, unless the contract explicitly defines another moment with which the parties associate the proper fulfillment by the seller of the conditions on the quality of the goods, for example, at a later date - the moment of acceptance of the goods from the carrier, subject to the determination of the seller's fulfillment obligations to transfer the goods at the time of its transfer to the carrier, etc. (clause 5 of art. 422 of the Civil Code)  

The quality condition is a common condition of a purchase and sale agreement, established, as a rule, by the parties to the agreement themselves (Clause 1 of Article 422 of the Civil Code). At the same time, the contract may provide for both a specific requirement for the quality of the product and the procedure for determining it. In particular, the contract may provide for determining the quality of goods in accordance with certain standards (GOST standards, OSTam); samples of goods that serve as a quality standard for the goods sold; specifications (description) of goods, which are a technical document and belong to most complex industrial goods, etc.e. It is allowed to determine the quality of the goods by a preliminary pre-sale inspection of the goods by the buyer or on his behalf by a specialist to determine the quality of the goods and whether the price corresponds to this quality, which is quite often used in the auction sale of collateral, privatized state property, antique valuables. The quality conditions are considered to be met even if the buyer has been notified of the defects of the goods being sold and has consented to purchase the defective goods, unless mandatory requirements are established in regulatory enactments regarding the quality of a particular product that exclude the sale of defective goods.  

At the same time, in the sphere of sellers' business activities, there are certain exceptions to the general rule of freedom for the parties to determine the quality of the goods being sold. If mandatory requirements for the quality of the goods being sold are provided for in accordance with the procedure established by legislative acts, in particular, such requirements exist for food, household goods, etc. If they are fixed, as a rule, in mandatory standards (GOST standards) for these goods, then the seller engaged in business activities is obliged to transfer to the buyer the goods that meet these mandatory requirements. This rule is imperative, which does not allow the parties to reduce the quality requirements of the product by agreement in comparison with the mandatory ones. At the same time, there is no obstacle in the latter case by the agreement of the parties to provide for higher requirements for the quality of the goods than those determined in accordance with the mandatory requirements (paragraph 4 of art. 422 of the Civil Code).  

The absence of conditions in the contract of sale on the quality of the goods or the procedure for determining it does not affect the validity of the contract in any way, since for these cases the Civil Code provides for complementary rules for determining the quality of the goods to be transferred to the buyer. In this case, the quality of the goods is determined by the suitability of its use either for the purposes for which such goods are usually used, or for the specific purposes of the buyer's purchase of the goods, if the seller was informed by the buyer at the conclusion of the contract on the purpose of the purchase of the goods.  

The other side of the seller's obligation to transfer the goods related to the quality condition is the obligation to transfer the goods to the buyer suitable for use. This means that the quality of the product corresponds to the possibility of its intended use. At the same time, if the seller does not know for what specific purposes the goods are being purchased, the goods must be suitable for the purposes for which such goods are usually used (paragraph 2 of Article 422 of the Civil Code).  

Closely related to the determination of the suitability of a product for use are the issues of the shelf life and warranty period of the product, which are temporary criteria for the quality of the product for its normal intended use. In this case, as a rule, the concept of a warranty period is associated with a product related to non-consumable items, and the expiration date is associated with a product related to consumable items. Having a common purpose, the expiration date and the warranty period differ significantly in the order of determination, the reasons for occurrence, the consequences of expiration and the effect over time.  

The expiration date is set by regulations, and therefore it cannot be changed either by the manufacturer or by the parties to the purchase agreement. Regulations provide for cases when the expiration date must be indicated on the product.  

The expiration date is a period of time defined by regulatory enactments, after which the product is considered unsuitable for its intended use and cannot be sold. The time period can be determined by indicating the date of manufacture and expiration date, as well as by indicating the final expiration date of the product (paragraph 1 of Article 423 of the Civil Code).  

Expiration of the expiration date makes it impossible to sell the goods, since one of the general conditions for the transfer of goods under the contract of sale is its suitability at the time of transfer (or other time determined by the parties) for its intended use. At the same time, when transferring goods with an expiration date, the seller, in addition to the suitability of the goods at the time of transfer, is also obliged to transfer the goods in such a way that they can be used by the buyer for their intended purpose within a reasonable time from the moment of transfer before the expiration date (paragraph 2 of art. 423 CC).  

The warranty period has many external similarities with the expiration date. The warranty period is the period of time during which the product must be suitable for its use in accordance with the purposes of its normal use (paragraph 1 of Article 425 of the Civil Code). The warranty period, as well as the expiration date, may be provided for by regulatory acts (legislation, mandatory requirements of state standards or other mandatory requirements), which follows from the content of the general norms of the commented paragraph on the quality of the goods, the goods must be delivered to the buyer fit for use, and in cases where mandatory requirements are provided in accordance with the procedure established by legislative acts. the quality of the product being sold - the seller must provide the product that meets these requirements. At the same time, unlike the expiration date, the warranty period can be set independently by the manufacturer or by agreement of the parties to the purchase agreement. In cases where the warranty period is stipulated by regulations, the warranty period may be changed by the manufacturer or by agreement of the parties only to increase it.  

The warranty period, unlike the mandatory rules on the procedure for calculating the expiration date, is calculated as a general rule from the moment the goods are handed over to the buyer, unless otherwise provided by the contract (Clause 1 of Article 426 of the Civil Code). At the same time, if the buyer was unable to use the goods transferred to him, for which the warranty period is set, due to circumstances beyond the seller's control (for example, a delay in the transfer of accessories, technical documentation for use, etc.), the warranty period is calculated from the moment the relevant circumstances are eliminated by the seller. In cases where the inability to use the goods occurred due to defects found in it, the warranty period is generally extended for the period of time during which the defects were eliminated, provided that the buyer complies with the rules for notifying the seller of a violation of the terms of the contract (paragraph 2 of art. 426 CC).  

As a general rule, the product quality guarantee applies to all its component parts included in the product package (components), that is, the warranty period for the component product (included in the product package) is equal to the warranty period for the main product and begins to flow simultaneously with the warranty period for the main product (paragraph 2 of art. 425 CC, paragraph 3 Article 426 of the Civil Code). Otherwise, it may be stipulated by the contract, which guarantees or does not apply to individual components, or if some parts of the product have their own warranty period or other calculation procedure, including its beginning. It should also be borne in mind that the latter rule cannot be applied to the warranty period, which is determined in relation to certain types of goods by mandatory rules of regulations. Regulatory enactments on the warranty period may provide for a different procedure with respect to component parts, the beginning of the calculation of the warranty period for the main and component parts.  

As a general rule, the replacement of goods or its individual components entails the resumption of the calculation of the warranty period, unless otherwise provided by agreement of the parties (paragraph 4 of art. 426 of the Civil Code).  

The absence of an expiration date or warranty period obliges the seller to transfer the product of such quality that it can be used within a reasonable period of time after delivery to the buyer. And in this case, a reasonable period of time acts as a guarantee with all the consequences that follow from this.  

The need to resolve the issue of compliance of the quality of the goods sold with the terms of the contract determines the quality control of the goods. The need to check the quality of goods may be contained both in the requirements of legislative acts in relation to certain types of purchase or sale of certain types of goods, and in accordance with the terms of any contract of sale, which provides for quality control of goods (paragraph 1 of art. 427 CC).  

The Civil Code does not contain specific methods for checking the quality of goods due to the impossibility of their legislative consolidation. At the same time, the Civil Code provides for a rule according to which quality control must be carried out in accordance with the requirements established in legislative acts or a contract, which implies the need for quality control. This makes it necessary to reflect in the contract or legislative act, which contains a condition on the need for quality control of the goods being sold, as well as the methods of conducting such checks. As a rule, regulations containing mandatory standards for the quality of certain types of goods sold also provide instructions on how to check the quality of the goods, according to which the inspection should be carried out in these cases. At the same time, the absence of verification methods in the event that a contract or legislative acts provide for a condition for conducting an audit does not affect the validity of the contract in any way. For these cases, the Civil Code provides for a rule according to which quality control must be carried out in accordance with business practices or other commonly applied conditions for checking goods to be transferred under a contract (paragraph 2 of Article 427 of the Civil Code). In particular, the methods of determining quality provided for in the contract may also determine the methods of verification: determining the quality of the goods sold according to the specification involves checking the conformity of the goods with the description contained in the technical description of the goods.; The determination of quality by samples involves comparing the product being sold with samples, etc.  

Checking the quality of the goods is, as a rule, the buyer's responsibility. At the same time, such an obligation may be imposed on the seller by a contract or legislative acts, regulatory acts on standardization (paragraph 3 of art.427 of the Civil Code). In this case, the seller is obliged, at the request of the buyer, to provide evidence of the quality control of the goods, and failure to check the quality of the goods is a violation by the seller of the obligations to fulfill the contract of sale.  

The seller, if there is a basis for his responsibility for violating the terms of the quality agreement, is responsible for the shortcomings of the goods sold, regardless of whether he knew about them or not. This rule is imperative, which does not allow the limitation or exemption of the seller from liability for defects in the goods by agreement of the parties (paragraph 1 of art. 429 of the Civil Code). This rule does not depend on whether or not the product has an expiration date or a warranty period.  

If the seller transfers goods of improper quality, that is, if he violates the terms of the quality agreement, the buyer has the right, at his discretion, either to cancel the contract and demand a refund of the amount of money paid for the goods, or to accept such goods and take certain measures to compensate for losses incurred in connection with the seller's violation of the terms of the quality agreement (paragraph 1 of Article 428 of the Civil Code). In particular, the buyer has the right, firstly, to demand a proportionate reduction in the purchase price, taking into account the violation by the seller of the conditions on the quality of the goods being sold. The buyer also has the right, secondly, to demand that the seller eliminate the identified defects of the goods free of charge within a reasonable time, or, thirdly, to eliminate these defects on his own, demanding from the seller reimbursement of his expenses for eliminating the defects of the goods. In addition, the buyer has the right, fourthly, to accept goods of proper quality, requiring the replacement of goods of improper quality with goods corresponding to the terms of the contract, and in case of defects in the entire batch of goods, to demand the complete replacement of the improper goods with the proper one. In the event that the seller is not the manufacturer of the goods sold, the buyer may, at his choice, submit claims for the replacement of the improper goods or for the gratuitous elimination of defects in the goods to both the seller and the manufacturer (paragraph 3 of Article 428 of the Civil Code).  

The specified rights of the buyer, including the right to refuse to perform the contract and refund the money paid, are formulated imperatively in the Civil Code, preventing the possibility of their exclusion by the terms of the contract (paragraph 1 of Article 428 of the Civil Code).  

Defects in a part of the product included in the package give the buyer the right to refuse to accept and pay, or to take other prescribed measures to eliminate losses due to improper quality of the product only in respect of this part of the product that does not comply with the terms of the quality agreement. In this case, the buyer does not have the right to refuse the rest of the included goods that comply with the terms of the quality agreement, since the parts of the kit are not functionally connected to each other and can be used separately from each other (Clause 2 of art.428 of the Civil Code).  

The application of the specified consequences of the transfer of goods of inadequate quality is possible if defects are detected at the time of the transfer of goods by the seller to the buyer. If the buyer discovers defects later, the application of the consequences of the transfer of goods of improper quality depends on the period of detection of defects from the moment of transfer of the goods, since the seller's liability is limited to the period of normal suitability of the goods, and the moment of the buyer's claims for violation by the seller of the terms of the quality agreement (paragraph 1 of art. 429 of the Civil Code).  

The period of detection of defects in the product and the procedure for filing claims for defects in the sold product, in turn, largely depends on whether there is a warranty period or an expiration date. With respect to a product that has an expiration date, the seller or manufacturer is responsible for any defects within that period. With respect to the goods for which the seller has provided a quality guarantee (regardless of whether the guarantee is given by agreement of the parties or in accordance with the requirements of regulatory acts), the seller is responsible within the warranty period for all defects in the goods, unless these defects have arisen in the goods after their transfer to the buyer and if these defects have arisen as a result of either violation by the buyer of the rules for the use of the goods or their storage, or as a result of the actions of third parties, or as a result of force majeure (paragraph 2 of art. 429 of the Civil Code).  

In the event that the product has neither an expiration date nor a warranty period, the seller is responsible only for defects that occurred in the product either before it was transferred to the buyer, or for reasons that arose before the goods were transferred to the buyer (paragraph 1 of Article 429 of the Civil Code).  

The time limits for detecting defects provided for in the commented paragraph of the Civil Code on the general provisions of purchase and sale also depend largely on the availability or absence of an expiration date or warranty period.  

The period of detection of defects in the product and the procedure for filing claims for defects in the sold product, in turn, largely depends on whether there is a warranty period or an expiration date. With respect to a product that has an expiration date, the seller or manufacturer is responsible for any defects within that period. With respect to the goods for which the seller has provided a quality guarantee (regardless of whether the guarantee is given by agreement of the parties or in accordance with the requirements of regulatory acts), the seller is responsible within the warranty period for all defects in the goods, unless these defects have arisen in the goods after their transfer to the buyer and if these defects have arisen as a result of either violation by the buyer of the rules for the use of the goods or their storage, or as a result of the actions of third parties, or as a result of force majeure (paragraph 2 of art. 429 of the Civil Code).  

In the event that the product has neither an expiration date nor a warranty period, the seller is responsible only for defects that occurred in the product either before it was transferred to the buyer, or for reasons that arose before the goods were transferred to the buyer (paragraph 1 of Article 429 of the Civil Code).  

The time limits for detecting defects provided for in the commented paragraph of the Civil Code on the general provisions of purchase and sale also depend largely on the availability or absence of an expiration date or warranty period.  

With respect to goods that do not have an expiration date or warranty period, the buyer has the right, as a general rule, to make claims for defects if they are found within a reasonable period of suitability for use of the goods for their intended purpose, but not more than two years from the date of delivery of the goods by the seller. At the same time, the latter rule is not mandatory, and it applies unless another time limit for filing claims for a shortage of goods is established by agreement of the parties in the contract or by legislative acts for certain types of purchase or sale of certain types of goods (paragraph 2 of art. 430 of the Civil Code).  

With respect to goods with an expiration date, the buyer has the right to make claims for defects in the goods only if they are found during the expiration date, which is dictated by the unfitness of the goods after the expiration date (paragraph 4 of art. 430 of the Civil Code).  

With respect to goods for which a warranty period has been established, the buyer has the right to make claims for defects in the goods only if they are discovered during the warranty period, which is dictated by the coincidence of the warranty period with a reasonable period of suitability of such goods (paragraph 3 of art. 430 of the Civil Code).  

At the same time, if the contract establishes warranty periods for the component parts of the product other than the warranty period for the main product, then there are special features of making defect claims, depending on whether this period is shorter or longer than the warranty period for the main product.  

If the warranty period for component parts is less than the warranty period for the main product, the buyer, if defects are found in the component product, has the right to make claims for them during the warranty period for the main product (Clause 3 of Article 430 of the Civil Code).  

If the warranty period for a component product is longer than the warranty period for the main product, the buyer has the right to make claims for defects in the component product within its warranty period, regardless of the expiration of the warranty period for the main product.  

If the warranty period is less than two years, and the defects are discovered by the buyer after the expiration of the warranty period, but within two years from the date of transfer of the goods by the seller, the buyer has the right to make claims for defects in the goods, provided that the defects occurred before the transfer of the goods by the seller, or for reasons that arose before that moment (paragraph 4 of art.).  

The presentation by the buyer of claims for defects in the goods in accordance with the established procedure and in the above cases entails the same consequences as when defects are discovered during the transfer of the goods by the seller.  

As a general rule, the goods must be delivered to the buyer in a container and (or) packaging, and the conditions for packaging and packaging are directly related to the quality of the goods (paragraph 1 of art.434 of the Civil Code). The goods may be transferred without packaging and/or packaging if there is an agreement between the parties under the contract of sale, if this follows from the nature of the obligation or the nature of the goods. At the same time, the rule on the possibility of an agreement between the parties on the transfer of goods without packaging and (or) packaging is not applicable in cases where, in accordance with the procedure established by legislative acts, mandatory requirements are provided for containers and (or) packaging for sale in the course of business activities of certain types of goods (paragraph 2 of Article 434 of the Civil Code). In this case, the seller-entrepreneur is obliged to transfer the goods in accordance with the mandatory requirements in containers and (or) packaging.  

As a rule, the requirements for containers and/or packaging are stipulated in the purchase and sale agreement. In the absence of requirements for packaging and (or) packaging in the contract, the seller is obliged to transfer the goods to the buyer packed and (or) packaged in the usual way for such goods, unless the possibility of transferring the goods without packaging and (or) packaging does not follow from the nature of the obligation or the nature of the goods. In the absence of a specific custom for packing and (or) packing any goods, the seller is obliged to pack and (or) pack the goods in a way that ensures safety under normal conditions of storage and transportation of goods of this kind (paragraph 2 of art. 434 of the Civil Code).  

When transferring goods without packaging and (or) packaging (and in the absence of an agreement on this between the parties to the purchase contract, as well as if the possibility of transferring goods without packaging and (or) packaging does not follow from the nature of the obligation or the nature of the goods), or when transferring goods in improper containers and (or) packaging, the buyer the seller has the right to require the seller to pack or pack the goods or replace the improper packaging and (or) packaging (clause 435 of the Civil Code), or to take actions resulting from the seller's failure to fulfill the terms of the contract on the quality of the goods: to refuse to fulfill the contract and demand the amount of money paid; to demand a proportionate reduction in the purchase price; to demand the replacement of unpacked and (or) unpacked goods with packaged and (or) packaged; to pack and (or) pack the goods independently and demand reimbursement of expenses related to this (clause 2 of Article 435 of the Civil Code).  

The purchase and sale agreement is mutual, and the obligations of the seller correspond to certain counter obligations of the buyer, which are the obligations of the buyer to accept the goods and pay her purchase price.  

The buyer's obligation to accept the goods is not abstract and unconditional, and it must be understood taking into account the general principles of fulfilling the obligation - the buyer must accept the seller's proper fulfillment of obligations under the contract. Violation of the fulfillment of an obligation on the part of the seller, for example, violation of conditions on quantity, quality, assortment, packaging, etc., gives the buyer, in cases specified by the Civil Code and legislative acts, the right to refuse to fulfill the contract (including demanding a refund of the paid purchase price) or to demand replacement of goods that do not comply with the terms of the contract. The right to refuse to perform a contract is not common to the obligation. According to the general rules on the performance of an obligation, unilateral refusal to perform an obligation is not allowed, except in cases where such a right is granted by law or contract. It is the commented chapter that provides for the obligation of purchase and sale in certain cases, upon the occurrence of certain circumstances, the possibility for the buyer to cancel the contract (paragraph 1 of Article 437 of the Civil Code).  

Acceptance of the goods by the buyer is a prerequisite for the seller to fulfill the obligation to transfer the goods. As a general rule, the moment of transfer of ownership and the transfer of the risk of accidental loss or accidental damage to the goods are also associated with the moment of acceptance of the goods. Therefore, the buyer's obligation to accept the goods is to ensure that the seller is able to transfer the goods, and failure by the buyer to provide such an opportunity is a failure by him to fulfill the obligation to accept the goods (paragraph 2 of Article 437 of the Civil Code). For example, if the goods are delivered by the seller, the buyer must provide the shipping details, if the goods are delivered at the location, accept and take out the goods offered by the seller, etc.  

The direct content of the buyer's obligation to accept the goods follows, as a rule, from the terms of the contract. In some cases, for certain types of purchase and sale, the specific content of the buyer's obligation to accept the goods may be determined by regulatory acts, in particular, for delivery, the seller's obligation to inspect the goods within a time period specified by the contract, legislative acts, and in the absence of a certain period - within a reasonable time, the obligation upon receipt of the goods from the transport organization to inspect compliance of the goods with the information specified in the accompanying documents, etc.  

Violation by the buyer of the obligation to accept the goods is the basis of his liability to the seller according to the general rules of the Civil Code on creditor's liability for late acceptance of performance of the obligation. In accordance with these rules, the seller has the right to recover from the buyer losses caused due to non-acceptance or delay in acceptance of the goods by the buyer. In addition, if the buyer violates the obligation to accept the goods, the seller has the right to require the buyer to accept the goods within a reasonable period of time or to cancel the contract (paragraph 3 of art.437 CC). The last rule is a development of the provisions of art. 273 of the Civil Code and one of the features of the legal regulation of such type of obligation as purchase and sale.  

The obligation to pay the purchase price arises from the compensatory nature of the purchase and sale obligation and consists in transferring a certain amount of money to the seller. The purchase price of the goods, that is, the amount of money to be transferred by the buyer to the seller, is determined, as a rule, by the parties to the contract (clause 1 of Article 438 of the Civil Code). In this case, it is possible both to directly determine in the contract the amount of money to be transferred by the buyer to the seller, and to specify the method of determining the purchase price without specifying a specific value, for example, determining the unit price, unit weight of the goods, an agreement on the application of prices of a certain exchange for the goods sold at the time of its transfer, determining the price of the goods in the equivalent of a foreign currency currencies, etc. In some cases, with respect to certain types of goods or with respect to a separate category of sellers-entrepreneurs (in particular, natural monopolists), it is possible to restrict the freedom of contract by legislative acts on the terms of the price of the goods, and in these cases tariffs, rates, etc. approved by an authorized state body or defined in regulations are applied. In addition, the freedom of contract to independently determine the price of goods in each specific case is limited for contracts related to public contracts. In public sales contracts, the price is set as the same for all buyers, in particular, this is the case in retail sales contracts.  

The price of the contract is not, as a general rule, an essential condition of the purchase and sale agreement in connection with the general rule of the Civil Code on the procedure for determining the price of a paid contract. At the same time, the price may be an essential condition of the purchase and sale agreement in cases directly provided for by legislative acts or when selling an individually defined item that has no analogues, in particular, when selling goods in installments, selling an enterprise, and in some others. In all other cases, if there is no price clause in the contract, the goods must be paid at the price that, under comparable circumstances, is usually charged for similar goods (paragraph 1 of Article 438 of the Civil Code).  

The buyer is obliged to pay the purchase price on time and in the manner specified by the terms of the contract. At the same time, the contract may provide for various procedures and forms of payments by the buyer for the transferred goods: partial or full prepayment, letter of credit form of payments, check form of payments, payment of goods after a certain period (sale on credit), installment payment, etc. In the case when legislative acts for certain types of purchase and sale provide for a certain due date, the buyer is obliged to pay the purchase price within this stipulated period. The absence in the contract or in legislative acts of a special deadline for payment of the purchase price, as well as the impossibility of determining it from the terms of the contract, does not affect the validity of the contract, since the Civil Code has compensatory rules for this case. If there is no obligation in the terms of the contract or in the requirements of legislative acts for the buyer to pay the purchase price within a certain period, the buyer is obliged to pay the purchase price immediately from the moment the goods or title documents are handed over to him in full (Clause 1 of Article 439 of the Civil Code).  

If the seller properly fulfills the obligation to transfer the goods, the buyer's failure to fulfill his obligation to pay the price is the basis for his liability both to compensate the seller for losses incurred in this regard, including in connection with the delay in fulfilling the obligation to pay, and to pay a penalty for the misuse of other people's money. In addition, the seller, as well as in the case of refusal to accept the goods by the buyer, in case of non-payment by the buyer in accordance with the established procedure (within the time limits and in accordance with the procedure provided for by the terms of the contract or the requirements of a legislative act, and in the absence of a payment deadline determined by them - in case of non-payment at the time of transfer of the goods) of the purchase price, has the right either to demand the proper fulfillment of this obligation by the buyer, or refuse to execute the contract (clause 4, Article 439 of the Civil Code). Non-payment by the buyer of a batch (part) of the transferred goods, when the seller must transfer other goods under the contract, gives the latter the right to suspend the transfer of these goods until full payment for the previously transferred ones, unless otherwise provided by the contract or legislative acts for certain types of purchase and sale (Clause 5, Article 439 of the Civil Code).  

The obligation to pay immediately from the moment of transfer of the goods or title documents may also be provided for in the terms of the purchase agreement. At the same time, it is possible by the terms of the contract to provide for payment for the goods both before and after the transfer of the goods.  

The buyer's obligation to pay for the goods in whole or in part before the seller transfers the goods is called pre-payment (clause 1 of Article 440 of the Civil Code). Pre-payment refers to the form of payment that must be made within a certain period of time from the moment of conclusion of the contract or another moment from which the deadline for making pre-payment is calculated, for example, notifying the seller of the readiness to ship the goods or of the willingness to place them at the disposal of the buyer. The absence of a deadline for making an advance payment, when making an advance payment is provided for by the terms of the contract, does not affect the validity of such an agreement, since in this case it is necessary to apply the general provisions on the deadline for fulfilling obligations set out in art. 277 of the Civil Code.  

Failure by the buyer to fulfill the obligation to make an advance payment grants the seller, as a general rule, the right to refuse to perform the contract and releases him from performing all duties assigned to him under the contract of sale, unless otherwise provided by the contract or otherwise established by legislative acts regulating certain types of purchase and sale. In this case, the seller's refusal to perform the contract does not release the buyer from liability for damages incurred by the seller in connection with the buyer's failure to fulfill his obligations under the contract (Clause 2, Article 440 of the Civil Code).  

In turn, the seller's violation of the obligations to transfer the goods after receiving the amount of advance payment gives the buyer the right, at his discretion, either to demand proper performance of the contract from the seller, or, in accordance with the general rules on the consequences of the seller's failure to fulfill the obligation to transfer the goods, to cancel the contract and demand the refund of the amount of money paid (paragraph 3 of art.). Both in case of demand for proper performance of the contract and in case of refusal to perform the contract, the buyer has the right to recover damages resulting from either a violation by the seller of the obligation to purchase and sell, or the buyer's refusal to perform the contract in connection with a significant violation by the seller of obligations under the contract. The buyer also has the right to recover a penalty for the misuse of the amount of money paid from the day when, according to the terms of the contract, the goods were to be transferred, until the day of the actual transfer of the goods to the buyer, or until the day of the refund of the amount of advance payment paid to him, unless the contract provides for the recovery of this penalty from the date of receipt by the seller of the advance payment (paragraph 4 of Article 440 of the Civil Code).  

The sale of goods on credit is a type of purchase and sale agreement, the characteristic classifying feature of which is the payment of the goods after a certain time after its transfer to the buyer. In this case, the buyer is obliged to make the payment within the time stipulated in the contract (clause 1, Article 441 of the Civil Code).  

Payment for the sale of goods on credit, as well as under the condition of prepayment, refers to the form of payment that must be made within a certain period from the moment of transfer of the goods or another moment from which the deadline for payment for the sale on credit is calculated, for example, after the grace period after the transfer of the goods. The absence of a deadline for payment, when the condition for sale on credit is stipulated in the contract, does not affect, as a general rule, the validity of such an agreement, since in this case it is necessary to apply the general provisions on the deadline for fulfilling obligations set out in art. 277 of the Civil Code. However, the latter rule does not apply to a credit sale agreement that contains installment payment terms, since for an installment loan agreement, the payment deadlines, along with the contract price, procedure and amount of payments, are attributed to the essential conditions of this type of purchase and sale, and failure to reach an agreement on these terms entails invalidity. the contract (clause 1 of Article 442 of the Civil Code).  

Violation by the seller of the obligations to transfer the goods, subject to the sale of the goods on credit, gives the buyer the right, at his discretion, either to demand proper performance of the contract from the seller, or, in accordance with the general rules on the consequences of the seller's failure to fulfill the obligation to transfer the goods, to refuse to perform the contract in accordance with the rules of Articles 273, 284 of the Civil Code (paragraph 2 of Article 441 of the Civil Code). Both in case of demand for proper performance of the contract and in case of refusal to perform the contract, the buyer has the right to recover damages incurred either by the seller's violation of the obligation to purchase and sell, or by the buyer's refusal to perform the contract in connection with a significant violation by the seller of obligations under the contract (Clause 3, art.441 of the Civil Code).  

In turn, failure by the buyer to fulfill the obligation to pay for the goods sold on credit within the prescribed period gives the seller, as a general rule, the right, at his discretion, either to demand proper fulfillment by the buyer of the obligations to pay for the goods received, or to refuse further fulfillment of the contract and demand the return of unpaid goods. In addition to the requirement for proper performance of the contract, the seller also has the right to recover damages incurred by him in connection with the buyer's violation of the obligation to pay for the goods. The seller's refusal to perform the contract also does not release the buyer from liability for damages incurred by the seller in connection with the buyer's failure to fulfill its obligations under the contract. The seller also has the right to collect a penalty for the misuse of other people's money for the amount of money due by the buyer from the day when the payment was due under the terms of the contract, until the day the payment was actually made or until the day the unpaid goods were returned, unless the contract provides for the recovery of this penalty from the date the buyer received the goods. (paragraphs 3, 4 of art.441 of the Civil Code).  

The sale of goods on credit is carried out at a price determined by the parties to the contract or which can be determined based on its terms, and if the price is not determined and cannot be determined based on the terms of the contract, at the price of similar goods at the time of transfer of the goods. Recalculation of the price, with a subsequent change in the prices of the goods sold, as a general rule, is not performed, unless the possibility of such recalculation follows from the terms of the contract or is established by legislative acts for certain types of purchase or sale of certain types of goods (paragraph 5 of art.441 of the Civil Code).  

As mentioned earlier, a special type of purchase and sale agreement is the purchase and sale of goods on credit with the condition of installment payment, that is, with the condition of payment for goods sold on credit, in the periodicity of payments determined by the agreement. In addition to the general essential terms of the purchase agreement (the object of sale and the quantity of goods), the essential terms of the purchase agreement with the installment payment also include conditions on the price, procedure, timing and amount of payments (paragraph 1 of art.442 of the Civil Code).  

The specifics of the sale of goods on credit on the condition of installment payment also include, as a general rule, the seller's right, in case the buyer violates the deadline for making the next payment, to cancel the contract and demand the return of the goods sold, unless the amount of payments made by the buyer does not exceed half of the price of the goods (paragraph 2 of art.442 of the Civil Code). The contract may provide for other consequences for cases of delay by the buyer in making regular payments than the refusal to fulfill the contract, for example, the collection of a penalty.  

Insurance of the goods being sold may also be one of the terms of the purchase agreement. The insurance clause refers to the accidental terms of the contract, that is, to those that are not unchangeable and mandatory for purchase and sale (clause 1 of art.443 of the Civil Code). At the same time, the insurance condition may be provided by agreement of the parties, including at the request of one of the parties at the conclusion of the contract, in which case it will relate to the essential conditions. The agreement of the parties may provide for the assignment of insurance obligations to both the seller and the buyer of the goods. In case of non-fulfillment of the insurance condition by the party obligated to insure the goods, the other party has the right either to insure the goods at its own expense and demand reimbursement of insurance costs from the obligated party, or to refuse to perform the contract due to a significant violation by the other party of the terms of the contract (Clause 2, Article 443 of the Civil Code).  

Another accidental condition of the purchase and sale agreement is the condition that the seller retains ownership until the goods are fully paid for or other circumstances stipulated in the agreement occur. In cases where such a condition is stipulated by the contract of sale, the buyer, as a general rule, does not have the right to dispose of the goods, including alienating them, until the transfer of ownership rights to him. The latter rule is dispositive and applies unless otherwise provided by the contract, legislative acts, or follows from the purpose and properties of the goods. Therefore, when the terms of the contract grant the buyer the right to dispose of the goods, the seller has no right to demand the return of the goods, including to claim them from third parties (art. 444 CC).

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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.  

Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.

Deputy head Professor Basin Yu.G.