Sale of goods through marketplaces: problems of realization and protection of consumer rights

Kolesnichenko Ol'ga Viktorovna ORCID: 0000-0003-3645-2861 PhD in Law Associate Professor; Department of State and Civil Law Disciplines; Civil Law Disciplines; Federal State State Educational Institution of Higher Education 'V.Ya. Kikot Moscow University of the Ministry of Internal Affairs of Russia'; Ryazan branch; Federal State Autonomous Educational Institution of Higher Education 'Tyumen State University' Office 508, Krasnaya str., 18, Ryazan region, 390043, Russia olja_korn@mail.ru Other publications by this author

Pankratova Dar'ya Vasil'evna Consultant ; Center for Legal Assistance to the Population ; Ryazan branch of FGKOU VP 'Moscow University of the Ministry of Internal Affairs of the Russian Federation named after V.Ya. Kikot' 390053, Russia, Ryazan region, Ryazan, Krasnaya str., 18 pankratovadaria30@gmail.com

The modern stage of human society is characterized by the rapid development of various technologies that make human life easier. Many traditional forms of acquiring wealth and performing household operations are being replaced by those that do not require leaving home, and often even indirect communication with economic entities (through messaging or other interaction). Against this background, such a way of selling goods as their sale through marketplaces, platforms that accumulate offers from various sellers and offer uniform terms of delivery and exchange, has become familiar. Meanwhile, many legal issues related to the sale of goods to consumers through marketplaces have not yet been resolved in practice and have not been developed from the point of view of civil doctrine. What is a marketplace in principle and does the considered method of selling goods require special regulatory legal regulation? What are the features of using universal methods of consumer protection when selling goods through marketplaces? It should be assumed that the answers to these questions directly determine the possibility of realization and the state of consumer protection in modern economic conditions, which determines the relevance of the topic of this study.

Anticipating the consideration of specific problems of the realization of the rights of buyers when selling goods through marketplaces, let's define the content of this concept itself. In the absence of a legal definition, most authors of scientific papers on this issue use it in the meaning adopted by regulatory authorities. Thus, a marketplace is understood as an e-commerce platform on which many economic entities simultaneously offer their goods ^{[1, p. 66; 2, p. 26; 3, p. 6]}. Within the framework of this understanding, attention is traditionally drawn to the differences between an online store and a marketplace, consisting in the fact that the former sells only the seller's own goods, while the latter is an organizational and information structure (resource) that provides a kind of intermediary services to sellers and buyers, consisting in creating conditions for searching for goods and concluding purchase and sale agreements ^{[4, p. 76]}. Based on this understanding, the marketplace is considered as a digital analogue of a fair or market ^{[5, p. 74]}.

As an alternative, it is proposed to use the concept of "information aggregator". Currently, its definition is proposed in paragraph 3 of Article 2 of Draft Law No. 568223-8 "On State Regulation of Trade activities of Aggregators of Information about Goods in the Russian Federation and on Amendments to the Federal Law "On the Basics of State Regulation of Trade Activities in the Russian Federation". The aggregator of information about goods here refers directly to programs for electronic computers and (or) the owners of the site and (or) the site page in the information and telecommunications network "Internet", which provide the consumer with an opportunity to simultaneously familiarize himself with the seller's offer to conclude a contract of sale of goods, conclude such an agreement with the seller as well as make an advance payment for the specified product by transferring funds to the owner of the aggregator within the framework of the applicable forms of non-cash payments in accordance with the legislation of the Russian Federation. In other words, an aggregator can only be considered an information resource (website) containing information about the products and services offered by various sellers (entities providing services). Examples of aggregators of information about goods in doctrinal sources include Ozone, Yandex Market, Wildberries, Beber Megamarket and many other well-known online platforms designed to select and purchase various kinds of goods and services ^{[6, p. 20; 7, p. 4]}.

It seems that the above definition and the term itself are rather technical in nature and do not provide the necessary terminological certainty in the field of legal regulation of relations in the consumer market. The intermediary platform cannot be identified with an information resource (an Internet site), since the implementation of this activity (posting information about goods sold, creating other conditions for concluding a contract) is associated with a set of special rights and obligations towards the consumer, which cannot relate directly to the information resource itself. And one cannot but agree with the opinion that in the field of private law regulation of relations in the field of the use of digital infrastructure, the decisive role is played not by the resource itself, but by the specifics of the relations that develop between the subjects ^{[8, p. 150]}.

Considering the above, in our opinion, it is necessary to legislate the concept of a marketplace, understanding as such an intermediary platform between consumers of goods, works and services, organizations, individual entrepreneurs selling goods for personal, family and other consumption unrelated to the implementation of entrepreneurial activities (providing services, performing work), built on the basis of a specific an aggregator of information about goods (works, services) designed to create conditions for the conclusion, execution, termination and modification of an agreement between these entities through e-commerce.

Currently, largely due to the existing terminological uncertainty, official statistics do not allow us to obtain comprehensive information about the types and forms of consumer rights violations that occur when goods (works, services) are sold through marketplaces. At the same time, according to the annual reports of the Rospotrebnadzor of the Russian Federation on consumer protection, most cases of non-compliance by economic entities with the norms of current legislation relate to the field of distance trading (about 20% of all recorded violations). An analysis of judicial practice in this area, in turn, allows us to note that one of the common problems with regard to marketplaces is a violation or significant restriction of the consumer's right to return (exchange) goods purchased through marketplaces.

Recall that Article 25 of the Law of the Russian Federation dated February 07, 1992 No. 2300-1 "On Consumer Protection" (hereinafter also the Law on the RFP) establishes a universal rule that the consumer has the right to exchange a non–food product of proper quality for a similar product from the seller from whom this product was purchased, if the specified product did not fit in shape, size, style, color, size or configuration. Thus, the opportunity to refuse a product is associated not only with a violation of the quality requirements of a particular product (product), but also with a discrepancy between its certain properties and consumer expectations.

Marketplaces traditionally set their own rules and deadlines for the return of goods. At the same time, the sale of goods in a certain way (in this case through the marketplace) does not limit or exclude the effect of the provision that the exchange of non-food goods of proper quality is possible within fourteen days, not counting the day of its purchase. Similarly, the consumer has the right to demand the return of the amount of money paid for this product, and such a demand is subject to satisfaction within three days from the date of return of the goods.

From a practical point of view, it is important to keep in mind that when returning goods without defects, the marketplace may charge a fee for returning such goods to the warehouse or to the seller. At the same time, the statement of such a requirement is illegal when defects are detected and the purchase is refused due to their presence (Article 26 of the Law on STD). Indicative in this sense is the decision of the Podolsk City Court of the Moscow Region dated April 13, 2023 in case No. 2-2962/2023 on the recognition of illegal actions of one of the popular marketplaces in relation to an indefinite circle of consumers. The court decision recognized that the marketplace, when carrying out the remote sale of goods, violates the current legislation, namely: charges/withholds funds from consumers for the return of goods of improper quality, and also obliges to return goods of improper quality from consumers, taking into account the requirements of paragraph 5 of paragraph 1 of Article 18, paragraph 5 of Article 26.1 of the Law on RFP (to return goods of inadequate quality from the consumer at the expense of the seller).

While welcoming the emerging judicial practice, at the same time, it should be noted that the problem of restricting the consumer's right to return goods of inadequate quality cannot currently be considered fully resolved. The prohibition on the return of certain categories of goods (food, personal hygiene products, underwear, etc.) is often considered by the marketplace as unconditional, excluding the possibility of exercising the relevant right, including when defects are detected, damage to the goods during delivery, etc. The issue of late refund due to the peculiarities of the commission is no less acute relevant operations when selling goods through marketplaces. Provisions on late fulfillment of obligations are applicable to such situations, and therefore, in case of late return of funds, a penalty may be imposed (Article 330 of the Civil Code of the Russian Federation). The STD Law provides the buyer with a legal opportunity to claim damages or refund funds. Thus, in addition to a fair sanction, compensation for losses caused by the implementation of illegal actions can be made. Obviously, the specifics of the information exchange between the seller and the marketplace cannot affect the legal conditions for protecting the consumer's material interests. However, in order to avoid unjustified restrictions or violations of consumer rights, it seems necessary to regulate the arising obligations of the marketplace in a regulatory legal act of the Government of the Russian Federation defining the rules of sale for the relevant cases. It seems that these features significantly distinguish the sale of goods through marketplaces from distance trading in general.

One of the most important functions of the marketplace is to provide the consumer with reliable, complete and accurate information about the characteristics of the product, price, delivery and return conditions. The right to information means that the information published on the platform's website must allow to establish with certainty what exactly is to be sold, who is the seller and manufacturer of this product, in what way (in what way, under what conditions) it can be purchased. The specified information must be brought to the consumer's attention in Russian in a clear and accessible form. Article 10 of the RFP Law contains a list of mandatory information for goods, the availability and placement of which, in accordance with the established procedure, is supposed to make it possible to make an informed decision on concluding a purchase and sale agreement. For this reason, violation of the right to information is considered as one of the significant violations of consumer rights, in connection with which the consumer is given the opportunity to demand compensation from the seller (contractor) for damages caused by unjustified evasion from concluding a contract, and if the contract is concluded within a reasonable time to refuse its execution and demand a refund of the amount paid for the goods and compensation other losses (Article 12 of the Law on STD).

Despite the evidence of the above regulatory requirements, the problem of the reliability of the information provided remains especially relevant for marketplaces in modern conditions, after the withdrawal from the domestic market of many previously popular brands of clothing and footwear, and other consumer goods. The internal rules of the organization of the marketplace's activities may provide for their own criteria and means of verifying the originality of the product, understood as compliance of the applied trademark with the actual information about the manufacturer (seller) of the product, including with classification into the category of "Original", "Verified", etc.). However, their use at the local level is not accompanied by the acceptance of obligations by the marketplace such a check. The judicial practice emerging against this background takes the side of the consumer. So, for example, the Regional human rights public organization of consumers of the Ulyanovsk region "Public Control" (hereinafter – RPOP), acting in the interests of citizen K., filed a lawsuit against the marketplace. The requirements were justified by the fact that K. placed an order for a large amount, but upon its actual receipt he discovered that the items were fake, the individual product code was not found on the website of the corresponding brand. Satisfying the claims, the Zavolzhsky District Court of Ulyanovsk, Ulyanovsk region, in its decision dated February 21, 2023 in case No. 2-657/2023 noted that the defendant had not provided evidence that the goods sold did not have the specified disadvantages.

In some cases, the specifics of ordering goods through the marketplace and their regulation at the level of a specific platform create prerequisites for illegal actions by sellers against the background of restricting consumer access to information about the timing and possibility of delivery of goods. Examples of consideration of claims caused by such actions have already been found in judicial practice. In particular, the decision of the Presnensky District Court of Moscow dated February 21, 2023 in civil case No. 02-1442/2023 satisfied M.'s claim to LLC Internet Solutions, LLC Koton Textile for recovery of losses, compensation for moral damage, invalidation of paragraph 10 of paragraph 1.4.2 of the Rules for the Sale of Goods for individuals, recognition illegal termination of the purchase and sale agreement unilaterally, collection of a penalty. The claims were motivated by the fact that the plaintiff issued and paid for the order, concluded a contract for the purchase and sale of coats from the seller "Coton Textile" on one of the well-known Internet platforms, with a delivery time to the pick-up point within two days. To confirm the order, the plaintiff transferred funds to the seller using the electronic payment function on the marketplace website. However, the day after the order was placed, the order was canceled with an indication of the reason: "There were problems when processing the order. Sometimes we have to cancel an order or part of it due to technical difficulties." Partially satisfying the stated requirements, the court pointed out that, since the coat was purchased by the plaintiff in view of the cold snap, due to the cancellation of the order, he was forced to purchase a similar product from another seller for a larger amount and with longer delivery times. The provisions of paragraph 10 of paragraph 1.4.2 of the Rules for the Sale of goods for individuals in this store, which noted that the marketplace has the right to cancel orders due to the presence of "other circumstances preventing the transfer of Goods in an agreed manner", are not subject to application as not conforming to current legislation. The given example seems to serve as an additional confirmation that the norms of the rules for the sale of goods adopted by marketplaces do not ensure proper compliance with certain fundamental provisions of "consumer" legislation.

Special legal regulation, it seems, is also required by relations related to the consideration of complaints and proposals on the marketplace platform. In this part, it is important to keep in mind that, from a procedural point of view, only the process of reviewing complaints submitted by consumers through the marketplace website is relatively clearly regulated, since the requirements of Article 42.3 of the Law on STD apply to it. In the part concerning the consideration of appeals, marketplaces traditionally offer consumers to use the support service chat service, however, accessing such a service does not guarantee compliance with the claim procedure for making claims to the seller of the goods. In most cases, the consumer is obliged to independently form an application for existing claims, the content of which indicates his personal data, notes the shortcomings of the product, and also includes photographs that are proof of the above. Consideration of such an application by the marketplace, however, can be completed with the recommendations of the support service for direct contact with the seller (manufacturer) of the product in view of the peculiarities of the nature of information interaction between the latter and the marketplace, which are not known to the consumer. In doctrinal sources, the noted problem has been confirmed in recent years, while attention is increasingly drawn to the need for special legal regulation of the participation of marketplaces in pre-trial dispute settlement ^{[9, p. 19; 10, p. 126]}.

Speaking about the approaches developed in civil science in general, it should be noted that the problems of selling goods (works, services) through marketplaces increasingly fall into the orbit of scientific research. However, recommendations for the development of regulatory legal regulation in this area are based either on the basis of the main causes of disputes arising in practice, or taking into account the need to achieve terminological certainty. For example, the main causes of litigation arising from the sale of goods through marketplaces are: violation of the terms of the marketplace offer, which infringe on the rights of sellers and owners of order pick-up points; violation of copyrights and exclusive rights of third parties; distribution of counterfeit products; the presence of justified consumer claims against the product itself. The elimination of these problems is primarily associated with the development of special regulatory legal regulation of the activities of electronic platforms for interaction between sellers and buyers ^{[11, p. 37]}. Within the framework of the approach, according to which the effectiveness of protecting the rights and legitimate interests of consumers is largely achieved by the terminological certainty of legal regulation, a reliable definition of the legal content of the concept of "marketplaces" is of fundamental importance. However, the latter is often suggested to be understood directly as the trading platform itself on the Internet, which helps sellers and potential buyers find each other online and interact with each other ^{[12, p. 12; 13, p. 67; 14, p. 265]}. It should be assumed that such a definition does not reflect the role of the marketplace in creating conditions for the realization of the rights of sellers and consumers, as well as the specifics of additional rights and obligations caused by the chosen method of selling goods. Finally, in some scientific papers, the specifics of relations for the sale of goods (works, services) through marketplaces are emphasized by important accents on the organizational nature of the relationships that arise between the intermediary platform and buyers, as well as sellers ^{[15, p. 375; 16, p. 62; 17, p. 169]}. However, such an approach, for all its importance, has mainly theoretical rather than practical significance.

It seems that point-by-point regulation of relations related to the sale of goods (works, services) through marketplaces, focused on problems in judicial practice, is not able to ensure the stability of civil turnover, which is characterized by the use of modern technologies and capabilities that facilitate the use of traditional contractual structures and settlement operations. Terminological certainty, which is so necessary in this field of legal regulation, also cannot be considered as an end in itself for doctrinal developments, but is accepted as a condition for extending legal guarantees of the realization and protection of consumer rights in their universal meaning to the studied relations.

Based on the above prerequisites, it should be concluded that the sale of goods to consumers through marketplaces is characterized by a number of significant features that distinguish this method from distance trading in general, due to the presence of which there is a need to develop rules for the sale of goods (provision of services, performance of works) based on the marketplace. At the same time, a marketplace should be understood as an intermediary platform between consumers of goods, works and services, organizations, individual entrepreneurs selling goods for personal, family and other consumption unrelated to entrepreneurial activity (providing services, performing work), built on the basis of a specific aggregator of information about goods (works, services), designed to create conditions for the conclusion, execution, termination and modification of an agreement between these entities through e-commerce. Rules for the exchange and return of goods purchased through the marketplace (for goods of inadequate quality and goods that did not fit the consumer in shape, dimensions, style, coloring, size or configuration); rules for the refund of funds for goods of inadequate quality or goods that did not fit the consumer in shape, dimensions) should be accepted as mandatory components of the rules. style, coloring, size or configuration; rules for disclosing information about the product being sold (service provided, work performed), including requirements for originality; rules for placing and canceling an order for goods (services, work) on the marketplace; rules for handling complaints and appeals to the marketplace and entities posting information on the marketplace's website on the Internet about the goods sold (services rendered, works performed). These rules should ensure that the consumer retains the legal possibilities provided for in Articles 18-22, 24-25, 27-32, 37, 39 of the Law of the Russian Federation dated February 07, 1992 No. 2300-1 "On Consumer Rights Protection", regardless of the method of sale of the goods.