Gift cards are now widely used by various trade companies as a product increasing interest of buyers both to goods (works, services) and to company card issuer. Nowadays it is quite a successful and popular marketing ploy. Because of its widespread this phenomenon cannot be left unattended by the legal system. Any phenomenon about which there are social relations shall be determined by any legal institution.
Nevertheless, legal nature of gift cards is not currently determined and is subject of debate in the legal community.
Our analysis of legal nature of gift cards or - as it would be better to call them - gift certificates, shows that this phenomenon cannot be fully attributed to any of the known objects of the Russian law, obligations or calculations.
One can only say with certainty what a gift certificate cannot be considered as since it would be contrary to the applicable law.
Gift certificate is not exactly a commodity. This conclusion follows from the fact that the card or other material carrier, which is issued in exchange for a sum of money to the buyer, by itself, has no consumer value. And the buyer is purchasing a gift certificate does not mean acquisition of such a carrier. He is interested in acquiring the rights that follow from the possession of gift certificate. Thus, gift certificate is not a commodity but certifies certain rights, content of which is set out in terms and conditions of gift certificate, which are formulated by the issuer of gift certificate. This view is shared by all judicial decisions on matters related to gift cards as well as Ministry of Finance. So a letter of the Ministry of Finance dated April 25, 2011 № 03-03-06/1/268: indicates that gift certificate is not a commodity. The letter also stated: cash received against issue of gift certificates are actually advance payment for goods. And exchange of gift certificate for goods is considered as sale.
But not being a commodity gift certificate, however, is itself a subject of civil turnover as it can be freely transferred from one owner to other both as a subject of donation as well as compensated properly. In this case new owner of gift certificate becomes holder of rights that follow from it. Thus, gift certificate inherent basic features of securities, such as “right to paper” and “right of papers”.
Gift certificate is not a security. Such qualification would be contrary to the requirements of the securities market legislation, which contains an exhaustive list of types of securities, existence of which is legally permissible - gift certificate is not included into this list.
The overwhelming opinion professed by the Ministry of Finance and tax authorities is that a gift certificate certifies advance payment. But advance payment assumes conclusion of contract, under which this advance payment is effected; in this case this is obviously sales contract. Therefore, first of all it is necessary to determine whether there is conclusion of sale contract when purchasing gift certificate.
In order to consider contract to be concluded it is necessary to have agreement between parties on all essential terms of contract; for all varieties of contract one of these conditions is subject-matter . An essential condition of any sale contract is name and quantity of goods.
According to clause 3 of article 455 of the Civil Code of Russia a condition of sale of goods is considered approved if contract allows specifying name and quantity of goods.
In stories with gift certificate name and quantity of goods is not always defined:
If gift certificate sets a specific product, work or service, to get which is possible upon presentation of certificate, it can be assumed that condition on subject-matter is agreed - and the contract is concluded respectively.
It is not right to identify gift certificate with deposit. The deposit is given by one party to the other party as evidence to contract and to ensure its execution . Deposit contract as an additional obligation, cannot exist without principal obligation. Since, as mentioned above, without agreeing upon subject-matter there is no concluded contract, there is no principal obligation - and therefore there is no deposit contract.
In addition, deposit contract shall be in writing regardless of the amount of deposit and while at the sale of gift certificate by issuer no written contract is concluded.
It is believed that between the acquirer of certificate and the issuer there are free loan relations (where the acquirer is the lender, and the issuer is the borrower). Proponents of this theory point out that the only essential condition of loan agreement is the amount of money so the contract can be considered concluded. The contract is concluded in favor of third party. The Civil Code of Russia does not oblige to specify in contract a certain third party , and therefore, performance can be effected in favor of any bearer of certificate.
However, when the issuer does not return to the certificate holder the same amount of money the main rule of loan is not fulfilled - its return. On the contrary, return of money paid for the certificate is a much more rare occurrence than issuance in exchange for certificate for goods (works, services). It can be assumed that obligation is an alternative and certificate holder chooses whether to receive goods (works, services) or return the money. Yet such assumption is incorrect, since model of alternative obligations under loan contract is not applicable. Based on essence of debt obligations if borrower is provided with money, it is money that shall be returned, and if it is provide with any thing with certain typical characteristics – “things of the same type and quality” shall be returned. Possibility to return other things instead of money would be a novation of loan into sale. In addition, it is unclear what would such loan turn into in case where buyer did not use during validity period of gift certificate its right to receive goods.
By its essence, de facto, a gift certificate, of course, is nothing more but a surrogate means of payment. But de jure, the norm of article 140 of the Civil Code of Russia does not allow to refer gift certificate to means of payment, which establishes that the only means of payment on the territory of the Russian Federation is the ruble as well as article 27 of the Federal Law “On the Central Bank of the Russian Federation”, according to which “it is prohibited to introduce on the territory of the Russian Federation other monetary units and issue money surrogates”.
The Russian law has long known the concept of prepaid financial products. In accordance with the instruction of the Central Bank of Russia dated July 3, 1998 N 276 -U prepaid financial products - are money obligations of companies, which substitute in the process of their circulation claims of legal entities (or individuals) regarding payment for goods or services, including monetary obligations in electronic form. In other words, it is a debt instrument which can perform payment function and used at payment for goods, works and services. Currently, however, instruction of the Central Bank of Russia has been repealed. Besides only credit institutions have a right to issue prepaid financial products.
Document certifying property rights
There is also another opinion: transfer of gift certificate to a third party by acquirer (future certificate holder) means transfer of property rights (right to receive goods, works, services) . To accept this opinion, it is necessary to determine how the acquirer of certificate obtains this property right. The ground could be the very sale contract with condition that goods are handed over to bearer of certificate. However, as indicated above, in order to conclude
contract it is necessary to agree upon minimum subject-matter while certificate does not always allow determining it.
We can also assume that issuer sells the right to claim to itself, which is derived from a one-sided transaction, which issuer commits. It unilaterally imposes upon itself obligation to transfer into ownership of any bearer of certificate any goods offered by it for sale worth face value of certificate. However, this assumption is inconsistent with provisions of the Civil Code of Russia that retail sale contract is a public contract and any potential buyer has the right to buy goods in a retail store; it does not need to have a gift certificate in order to possess this right.
Legitimation sign
Gift certificates are very close legitimation signs - documents evidencing rights to receive prepaid performance pursuant to a specific contract (lottery tickets, tickets, tokens to storage rooms etc.). And if it was about gift certificate for providing services (e.g. membership card to fitness center or a certificate for parachute jump) then gift certificate should be considered as legitimation sign. However, in case of gift certificate for receipt of goods this position does not reflect essence of such relations.
For example, buying a ticket for transportation we can purchase both tickets for the month, i.e. without limiting number of trips and ticket, for example, for 60 trips. One has the right to use all 60 trips, use fewer trips or not use ticket all. After expiration of ticket the unused trips are canceled, money in any case are not refundable. Ticket is not individual; it can be transferred to anyone. Seems like a complete analogy with gift certificate.
However, there is a significant difference: when buying ticket buyer simultaneously enters into contract of passenger transportation . That is, in essence, when buying such ticket passenger immediately gets 60 tickets for 60 trips. In the situation with gift certificate for purchase of goods such a scheme does not work due to the notorious inability to conclude sale contract, without specifying name and quantity of goods to be transferred to buyer.
It is not possible to consider gift certificate as confirmation of contract not stipulated by the Civil Code of Russia. Article 421 of the Civil Code of Russia allows parties to enter into contracts not covered by the Civil Code of Russia, provided that they do not contradict it. However, any contract is qualified primarily on its subject-matter. Therefore, if subject-matter of contract is defined as transfer of ownership over asset for a fee then it is sales contract. Hence it is impossible to say that sales contract of goods, name and amount of which is not known is considered to be an unknown contract in the Civil Code. It is just not concluded sales contract.
Analogue of postage stamp
Postage stamps of the Russian Federation (stamps) are intended to pay for postal services provided by communications companies according to tariffs and confirmation to this on domestic and international correspondence. However, stamps are a special state payment tools, having special regulation . Stamps can be purchased separately from provision of postal services unlike legitimation signs. Due to it is possible when stamps are purchased and service is not provided.
In this case stamps are not returned to buyer. But for stamps such system is justified because of their low cost. While similar regulation for use of gift certificates will lead to greater unjust enrichment for shops (salons, etc.) and, as a consequence, to a large number of litigations.
Preliminary contract
However, it may be that gift certificate confirms the fact of concluding not sale contract, but preliminary sales contract. This institution of civil law is sufficiently regulated by the Civil Code of Russia. According to preliminary contract the parties undertake to enter into contract in future on transfer of property, rendering of works or services (the main contract) under conditions provided by preliminary contract. Basic legal requirements to preliminary contract are :