Judicial practice according to the Law N 44-FZ
The advance payment should not depend on the customer's discretion
In the draft of the contract the customer has established:
the contractor may apply for an advance payment within 10% of the contract price;
the customer has the right not to pay such an advance.
The FAS recognized these provisions of the contract as illegal, and the courts of three instances supported the Antimonopoly authority. If an advance is provided, a specific amount and obligation to pay it must be established.
Document: Resolution of the Arbitration court of the Moscow district of 24.01.2020 in the case of N A40-48363/19-154-404
You can not refuse the contract because of the shortcomings of the goods that have not yet been transferred
The customer purchased apartments and specified in their requirements that all metering devices should be in the apartments. Before entering into a contract with the only participant in the purchase, it turned out that there were no gas meters in the apartments offered by them. The customer did not sign the contract.
The office of the Federal Antimonopoly service and the courts of three instances recognized the customer's actions as a violation, because:
it is not possible to identify the shortcomings of the delivered product before entering into a contract;
by the time the contract was concluded, the shortcomings were eliminated (counters were installed).
Document: Resolution of the Arbitration court of the North Caucasus district of 23.01.2020 in case N A53-27844/2019