Modification and termination of the agreement are possible by agreement of the parties and the agreement is considered amended or terminated in the event of a unilateral refusal to fulfill it.

S. filed a lawsuit against O. to recover 300,000 tenge transferred to her as payment for the cost of the car, which she sold to him in installments on November 10, 2011. The deal was concluded verbally, according to the terms of the agreement, he had to pay the rest of the cost of the car in the amount of 600,000 tenge in installments of 60,000 tenge per month. O. after receiving the money in the amount of 300,000 tenge, she handed him the car and issued a power of attorney for the right to drive the car for a period of three years. A few days later, it turned out that the car required repairs, which the defendant refused to pay for, and therefore he returned the car to her, demanding that she refund the money received for it. However, the defendant refused to return the money. In addition, he incurred unforeseen expenses in the form of diagnostics, repair of a car in the amount of 13,000 tenge, replacement of car oil in the amount of 9,200 tenge and payment of GPO insurance in the amount of 7,803 tenge, therefore, the plaintiff requested to recover the transferred amount of the deposit for the car and the expenses incurred. By the decision of the Oktyabrsky District Court of the city of Karaganda dated February 29, 2012, which was left unchanged by the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Karaganda Regional Court dated May 18, 2012, S.'s claim was denied. By the decision of the Cassation Judicial Board of the Karaganda Regional Court dated October 24, 2012, the court's decision and the decision of the appellate judicial board remained unchanged. In the petition, the applicant raises the issue of the cancellation of the judicial acts that took place and the satisfaction of his claim, pointing out that the courts incorrectly determined and clarified the range of circumstances relevant to the proper resolution of the dispute, the conclusions of the courts do not correspond to the actual circumstances of the case.

Within the meaning of the law, a decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship. A decision is considered justified if it reflects the facts relevant to the case, confirmed by evidence examined by the court that meets the requirements of the law on their relevance, admissibility and reliability. The Supervisory Judicial Board of the Supreme Court overturned the decision of the Oktyabrsky District Court of the city of Karaganda, the decisions of the appellate and cassation judicial boards of the same court, and sent the case for a new trial to a different court of first instance on the following grounds. It can be seen from the case file that on November 10, 2011, the parties agreed to purchase a car in installments for 900,000 tenge, of which 300,000 tenge was transferred by the buyer to O. On the same day, he undertook to repay the remainder of the cost of the car in the amount of 600,000 tenge for 60,000 tenge per month. The defendant, in turn, gave the plaintiff a notarized power of attorney for the right to drive a motor vehicle for a period of 3 years. These circumstances are recognized by the parties and are not disputed. On November 12, 2011, to check the technical condition of the purchased car, S. applied to a car repair shop, where he was billed 70,000 tenge for repairs. S. offered O. to reduce the cost of the car due to the fact that he incurred unforeseen expenses, but she refused the purchase and sale of the car, while she paid the advance payment not returned. The lower courts established that a deal had been made between the parties to alienate the car, recognized O.'s actions as legitimate, indicating that she had fulfilled the terms of the oral transaction, and, referring to the provisions of Articles 401 and 403 of the Civil Code, indicated that modification and termination of the contract were possible by agreement of the parties and the contract was considered amended or terminated in the event of a unilateral refusal. from the execution of the contract.

Modification and termination of the agreement are possible by agreement of the parties and the agreement is considered amended or terminated in the event of a unilateral refusal to fulfill it.

In addition, the courts pointed out that upon termination of the contract, the obligations of the parties are terminated and since, by virtue of paragraph 4 of Article 403 of the Civil Code, the parties do not have the right to demand the return of what they performed under the obligation before the termination or amendment of the contract, and O. the terms of the contract are not significantly violated, S.'s claims for the return of the 300,000 tenge paid are not satisfied. are subject to. Meanwhile, these conclusions are based on a misinterpretation of substantive law and are based on incorrectly defined and established circumstances relevant to the case. According to subparagraphs 1) and 4) of part 1 of Article 364 of the CPC, the grounds for revoking or changing the decision of the court of first instance are incorrect determination and clarification of the range of circumstances relevant to the case, incorrect application of substantive or procedural law. It follows from subparagraph 3) of Article 365 of the CPC that substantive law norms are considered to be incorrectly applied if the court has misinterpreted the law.  As stated above, by refusing to satisfy S.'s claim for the return of the transferred O. under the contract of 300,000 tenge for the purchased car, the court referred to the provisions of paragraph 4 of Article 403 of the Civil Code, according to which the parties do not have the right to demand the return of what they performed under the obligation until the termination or amendment of the contract. The courts of appeal and cassation instances agreed with these conclusions. Meanwhile, within the meaning of this rule, the prohibition on the right to demand the return of what has been received under the contract applies only to obligations mutually fulfilled by the parties. In this case, car C. O. was returned, therefore, the plaintiff is not deprived of the right to demand a refund of the prepayment.

At the same time, the board, in accordance with subparagraph 5) of part 4 of Article 398 of the CPC, cannot make a new decision due to an error in the interpretation of substantive law, since the court did not fully identify and clarify the range of circumstances relevant to the case. The relations of the parties related to the purchase and sale, including installment payments for the sale of goods on credit, are regulated by the rules contained in Chapter 25 of the Civil Code. In the same chapter, there are rules that regulate the relationship between the seller and the buyer in the event of a quality check of the goods, establish the consequences of the transfer of goods of inadequate quality, determine the rights and obligations of the parties. If the court came to the conclusion that there was a car sale agreement between the parties, it should have been guided by the relevant norms specified in Chapter 25 of the Civil Code and, taking into account their provisions, resolve the dispute over the rights and obligations of the plaintiff and the defendant.

Since the court did not reliably establish which legal relations arose between the parties, did not determine on what basis, the plaintiff could have the right to claim the defendant for the return of the funds received, the decision cannot be considered to comply with the requirements of Article 218 of the CPC. When reviewing the case again, the court of first instance should, in accordance with part 2 of Articles 66 and 166 of the CPC, clarify the circumstances relevant to the proper resolution of the case, clarify the plaintiff's claims, determine the legal relations of the parties and the law to be followed, determine the evidence that each party must provide in support of its claims and objections, while maintaining objectivity and impartiality, verify the validity of the stated claims, evaluate the evidence presented in accordance with Article 77 of the CPC, to create the necessary conditions for the realization of the rights of the parties to a full and objective investigation of the circumstances of the case, to make a legitimate and informed decision. 

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