What do warranty obligations under a contract include?

Commentary on Article 755 of the Civil Code of the Russian Federation

Paragraph 1 of this article imposes on the contractor the obligation to establish a warranty period for the result of the work. The duration of this period may be established by the parties or by law. In the latter case, the period may be increased by agreement of the parties. Before its expiration, the object must meet the indicators contained in the technical documentation.

The quality guarantee does not apply to the following cases:

— normal wear and tear of the object and its parts,

— occurrence of deficiencies caused by improper operation;

— occurrence of defects as a result of errors in the operating instructions drawn up by the customer or third parties involved by him;

— the defects arose as a result of repairs carried out incorrectly by the customer or persons involved by him.

The warranty period begins to run first on parts of the object that were repaired due to the occurrence of the warranty period.

The customer is obliged to notify the contractor of defects discovered during the warranty period within a reasonable time.

What warranty obligations does the contract contain?

In the case of a construction contract, the main procedures are aimed at construction or repair work, and, as a result, the obligations become:

1. Guaranteed retention of part of the customer's funds.
2. Compensation for damages in case of inadequate quality of work.
3. Carrying out procedures again if repairs cannot be carried out and the quality does not meet the requirements of the law and the contract.
4. Warranty repairs (subject to the statutory warranty period for construction work).

Warranty and return

The security deposit (guarantee retention) under a contract is the amount that the client retains in his account (they cannot be spent anywhere other than payment for the contract) until the production result is accepted . This type of guarantee is necessary so that the consumer, if significant deficiencies are identified in the work of the contractor, can use these funds to eliminate the problems that have arisen.

The amount withheld by the customer is transferred to the contractor if:

1. All conditions were met on time, and the production result passed quality control.
2. The warranty period for repair work has expired.
3. After termination of the obligation at the initiative of the client without significant reasons (by a court decision and in the presence of such a clause in the agreement).

Overperformance of work and compensation for losses

If serious defects are identified, the client has the right to both terminate the agreement with full compensation of the funds spent, and to demand that the work be re-performed in satisfactory quality.
This type of guarantee is most often resorted to in cases where the procedures were performed improperly due to the fault of the contractor, but not due to non-compliance with the stated requirements.

For example, if the management and employees of a construction company fulfilled their obligations according to the contract, and one of the managers cheated and his actions led to the occurrence of defects.

Repair

Warranty repairs are a special way of guaranteeing an obligation, which is used after the work has been completed and the object has been handed over. This type of protection of customer rights was introduced due to the fact that not all defects can be detected through an initial examination.

Another comment on Article 755 of the Civil Code of the Russian Federation

1. Comment.

Art. determines the specifics of the contractor’s liability for defects discovered in the facility during the warranty period, i.e.

the period during which the contractor vouches for the quality of the facility constructed by him and undertakes to eliminate all identified deficiencies free of charge. The warranty period for the result of construction work can be established by law or by contract.

If the warranty period is provided by law, it may be increased by contract; on the contrary, the parties cannot reduce the warranty period.

The specificity of a construction contract is also expressed in the fact that the contractor guarantees to the customer not only the ability to operate the facility for its intended purpose throughout the entire warranty period, but also that the construction project will achieve the indicators specified in the technical documentation.

2. If there is a warranty period, it is assumed that any defects in the constructed facility identified within its limits are a consequence of poor work of the contractor, who is held responsible for all defects.

However, this presumption can be refuted by the contractor if he is able to prove the existence of the circumstances specified in paragraph 2 of Art.

755, i.e. improper operation of the object, normal wear and tear of the object, etc.

Expert opinion

Lebedev Oleg Tarasovich

Lawyer with 7 years of experience. Specialization: family law. Extensive experience in defense in court.

3. The inability to operate the facility is not caused by any identified deficiencies, but only by those that are significant, pose a risk of harm to people and the environment, can lead to an accident, etc.

The question of whether there were sufficient grounds to suspend the operation of the facility, in the event of a dispute, is decided by the court.

If the suspension of operation of the object was justified, then the warranty period is suspended for the entire time during which the object could not be operated. Indication p.

3 that “the course of the warranty period is interrupted” is not entirely correct, bearing in mind the existing differences between the concepts of “suspension” and “break” of the period (cf. Art.

202 and 203 Civil Code).

4. The obligation of the customer to report defects to the contractor within a reasonable time after their discovery implies that the customer must do this without delay, i.e.

as soon as possible to reduce the contractor's costs of correcting deficiencies. If the customer misses a reasonable deadline, it does not deprive him of the right to demand that the contractor eliminate defects identified during the warranty period, but gives the contractor the right to insist that the customer has borne the part of the costs that he additionally incurred in connection with the untimely declaration of defects.

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The construction of houses and other structures is an industry with increased responsibility. The state carefully regulates the relationship between developers and customers, establishing a warranty period for construction work.

Determining the warranty period in a construction contract

According to the provisions of paragraph 2 of Art. 755 of the Civil Code of the Russian Federation, a construction contracting company is responsible for the quality of the construction of the task within the framework of warranty obligations. Therefore, when signing a contract, it makes sense for the customer to remind the other party about the warranty period and the need to comply with it.

If no one bothered to include in the document a clause on the duration of the guarantee, then the norms provided for in Art. 724 Civil Code of the Russian Federation. Clause 2 states that when, based on the results of the work, a guarantee period is not assigned, then quality claims are made within 2 years from the moment the facility was put into operation, unless a different period was specifically established.

Judicial experience shows that the limiting period for detecting violations under contract agreements is at least two years, and the law does not provide for its reduction.

Regarding the construction of real estate in Art. 737 of the Civil Code of the Russian Federation (household contracting), the warranty period has been increased to 5 years. The next article 756 establishes that the time limit for detecting violations under a construction contract is five years. In addition, paragraph 1 of Article 755 of the Civil Code of the Russian Federation allows for an increase in the warranty period as a result of an agreement between the parties, which is noted in the document.

Fulfillment of warranty obligations in accordance with the general rules begins from the moment the customer accepts the work performed or enters into operation of the constructed facility, as stated in clause 5 of Art. 724 Civil Code of the Russian Federation.

And clause 3 of Art. 755 of the Civil Code of the Russian Federation indicates that the warranty period is terminated for the entire period during which the object did not function due to detected violations due to the fault of the contractor. The customer is obliged to inform the contractor about detected defects during the warranty period (clause 4 of Article 755 of the Civil Code of the Russian Federation).

A construction contract usually contains an indication that all quality violations committed during the work are confirmed by bilateral acts. Such a requirement is not convenient for the customer, since he must constantly find an opportunity to force the builders to sit down at the negotiating table and draw up documents that would document their shortcomings.

To do this, send the contractor a written warning about his participation in the meeting of the commission to establish a list of shortcomings and the reasons for their occurrence. When conducting a pre-trial examination, the contractor must be notified of the time and place of the meeting. If the customer did not inform the administration of the construction company about this and did not put forward a requirement in court of any instance (first or appeal) for the need to carry out an examination, then the claim will not be satisfied.

What do the Town Planning and Civil Codes say?

The central act is the Civil Code of the Russian Federation. The construction of housing in practice is carried out in the form of a construction contract and provides for strict regulation of the quality of work. In Art. 754 of the Civil Code of the Russian Federation establishes the general responsibility of the contractor for any deviations from the standards of technical documentation.

Important! The Town Planning Code is more specific and narrowly focused, regulating design and construction rules, but does not specify impact measures. The issue of guarantee is resolved specifically in the Civil Code of the Russian Federation.

Is there a guarantee

Art. 755 of the Civil Code of the Russian Federation establishes a legal guarantee for the quality of a construction project. It is indicated that the contractor is responsible for the operational condition of the building by default, unless otherwise provided by the contract. The counterparty is responsible for the entire warranty period.

What is not covered

From the content of the articles of the Civil Code of the Russian Federation, it is possible to deduce cases when the developer’s liability will not apply:

• minor deviations from the norms;
• wear;
• improper operation of the facility;
• improper repairs.

If the contractor made minor errors in the indicators, but this did not affect the operation of the building in any way, then the contractor cannot be held liable.

The rule also applies to cases of wear and tear, when an object loses performance over time. If the customer involved third parties in the repairs or restored the object himself, then claims cannot be made to the contractor.

Legislative norms have direct force, which is confirmed by judicial practice. The contractor has the ability to protect his own rights and interests.

IMPORTANT! The listed violations are proven by examinations. The contractor has ways to avoid liability if he convinces the court that he was not involved.

Warranty period under the contract - Official information

A work contract is a signed agreement between the parties regarding the provision of a specific service (work) to the client by the contractor and the receipt of financial compensation as a result.

Like any other, a contract agreement at the legislative level is provided with a number of guarantees that are included to protect the rights of the parties.

In essence, this is the obligation of the contractor to eliminate or correct its shortcomings and compensate for losses incurred by the counterparty.

An eloquent illustration is the guarantee under the contract, which ensures security and reliability for everyone involved in the transaction.

The result of the work must meet the agreements of the parties on quality for the entire warranty period established by the contract. The guarantee under the contract for the quality of completed work applies to all components of the work result (Article 722 of the Civil Code).

Despite the existence of legal requirements for the provision of guarantees, when drawing up construction contracts, we recommend that the terms of the contract include:

• Responsibility to correct defects in work.
• The warranty period for the customer to file claims for correction of defects. The law establishes 1 year.
• Time period for completion and quality of contract work. In case of violation, the contractor will cover the losses.
• Guarantees to cover expenses incurred due to the fault of the parties to the transaction.
• Force majeure circumstances.

Keep in mind! If a defect is discovered after the agreed warranty period under the contract, performance can be demanded through the court.

A positive outcome can be expected if there is confirmation of a breakdown due to the fault of the contractor before the delivery of the project.

– the consumer sends a request to the contractor to carry out repairs and eliminate deficiencies;

– the contractor can immediately begin to correct it or, in case of disagreement or doubt, conduct an independent examination. The warranty under the contract does not apply to an item that is not subject to use.

– in controversial cases, it is necessary to refer the conflict resolution to the court.

Note! If an enterprise is declared bankrupt, third parties are allowed to fulfill guarantee obligations. But they bear obligations for the quality of repair work to the contractor.

No, the warranty period under a contract is prescribed by law and evasion of it is regarded as an infringement and limitation of consumer rights.

– free elimination of defects in the optimal time;

– proportional reduction in the cost of work;

– compensation for investments arising from the elimination of violations and shortcomings.

The contractor, in turn, instead of eliminating the deficiencies for which he is responsible, has the right to perform the work again free of charge with compensation to the customer for damages caused by the delay in performance. Then the latter must return to the performer the previously transferred work result, provided that such a return is possible.

Even if the contract itself exempts the performer from liability for specified defects, he nevertheless bears responsibility if it is proven that they arose through his fault.

From the date of acceptance of the building into operation - 2 years, unless another period has been assigned. As for real estate, civil law sets a time limit for identifying violations and is equal to five years.

Important! It is possible to increase the warranty period under a contract only with the mutual consent of its participants.

One of the effective ways of guaranteeing a construction contract can be considered the retention by the customer of some financial part of the contractor until the expiration of the warranty period under the contract.

Another side is also possible: restraining the counterparty’s property by the other party (Article 359 of the Civil Code). In other words, the creditor keeps the thing. subject to transfer to the debtor until he repays the obligation to pay it.

However, it is worth noting that in the norms of the Civil Code such guarantee retention is absent and not directly stated, therefore, without a specific indication of it in the contract, it contradicts Art. 702 of the Civil Code on mandatory payment for completed orders.

– what specific part of the payment for work performed by the contractor can be withheld;

– a specific time period giving the customer the right to withhold part of the payment,

– a condition for the unchangeable return of the retained guarantee in the event of cancellation or modification of the contract;

– the circumstances of offsetting the retained amount to cover the customer’s expenses for eliminating defects found during the warranty period.

In such situations, the court recognizes the legality of the warranty lien under a work contract, guided by the principle of freedom of contract (determined by the Supreme Arbitration Court of October 6, 2010 No. A40-91758/09-105-671).

The developer is evading the agreed guarantees, but everything has been done to fulfill them? The only way out is to restore your rights in court. The victim applies to the court with a statement of claim, in which he indicates the reasons, referring to the warranty periods under the construction contract or the law.

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The claim is accompanied by an agreement and materials confirming the customer’s attempt to resolve the issue amicably, in the event of the contractor’s refusal. And if we are talking about warranty repairs, you should attach documents certifying the full payment for the work in due time.

Important! The court may remove the contractor from the obligation to fulfill the guaranteed obligations against the customer's debt if he has not paid the entire amount stipulated by the contract.

Arbitrage practice

An analysis of the judicial practice of considering cases related to the warranty period allows us to conclude that it is recognized as legal for the customer to eliminate defects in the work performed on his own if the contractor has evaded fulfilling this duty, despite his repeated requests.

Regarding payment for work after it has been completed with omissions, the courts recognize the impossibility of returning payment and the need to eliminate defects during the warranty period. In the event that a deposit was given, it is possible to recover the difference by a proportionate reduction in the cost of the work, as unjustified enrichment.

Important! The presence of relevant expert findings confirming a precedent of violations does not at all guarantee an unconditional positive result in court.

The guarantee under the contract and the formation of its terms is an important part of the contractual relationship and should in no case be neglected. By regulating such an important aspect only legislatively, the parties lose the opportunity to protect their rights, which, in turn, leads to protracted litigation.

Warranty obligations by type of work

In practice, there are strict rules for determining the time of responsibility. The legislation does not contain a specific list of deadlines that apply to certain types of work.

Construction

Construction work is the most general case, which is directly regulated by the provisions of civil law. The minimum duration is 24 months, the maximum is 5 years. The meaning of construction is to erect a new house or building.

Assembly

According to the logic of the law, installation activities belong to a subtype of construction (the general name is construction and installation work). This conclusion can be made on the basis of paragraph 2 of Art. 740 of the Civil Code of the Russian Federation, which states: installation falls under the concept of other construction actions. Thus, the same periods apply (24 months - minimum, 5 years - maximum).

In practice, installation is the installation of new equipment and other structures (for example, a roof) that form a more general object (for example, an apartment).

Finishing

There is no reason to include finishing activities as a type of construction. In practice, this is the performance of work regulated by consumer legislation. In paragraph 3 of Art. 29 of the Civil Code states: a citizen has the right to make claims against the contractor within 2 years. The same duration is indicated in SNiPs.

Finishing is regulated by other regulations, since it is not directly related to the creation of new objects.

Repair

There are current and capital. If repair activities do not affect significant redevelopment and improvement of the building, then they are ongoing. The terms specified in the Consumer Rights Protection Law will apply: 2 years - maximum.

Major repairs fall under the concept of construction (Article 740 of the Civil Code of the Russian Federation), which automatically allows the use of a five-year period for filing claims.

IMPORTANT! All of the above actions may not have a guarantee: it is established primarily by the contract. It is in the interests of the customer to document the warranty obligation in the agreement with the contractor.

Regulatory framework

All construction services (construction of buildings and structures, repairs, reconstruction) are provided on the basis of a concluded contract.
Their legal framework is as follows.

1. Civil Code of the Russian Federation (Articles 722, 753, 755-756). This is a fundamental regulatory act that establishes the concept of a work contract and also contains the norms of mandatory guarantees for construction work.
2. Decree of the Government of the Russian Federation numbered 812, dated August 14, 1993, on the procedure and main provisions for concluding contract agreements for the construction, repair, reconstruction of facilities for state and Federal needs. This legal act contains mandatory warranty requirements for all construction projects constructed for public needs.
3. Resolution of the State Statistics Committee of the Russian Federation number 100 dated November 11, 1999. This legal act regulates the procedure for drawing up documents and claims when identifying deficiencies in the acceptance of construction projects and their operation.
4. Federal Law on the Protection of Consumer Rights, which protects individuals as customers of various construction services from individual entrepreneurs and legal entities.

Attention
Based on the norms of the Civil Code of the Russian Federation, the contract agreement must be drawn up in writing, indicating the contractor’s warranty obligations.

A contract agreement is concluded between organizations to perform certain work (construction of a residential building, roof repair, installation of siding, etc.). According to it, the contractor undertakes to do it efficiently, and the customer undertakes to pay on time.

There are situations when, during the execution of the terms of the contract, equipment is deliberately damaged, expensive materials are wasted, poor quality results are provided, etc. In order to avoid unjustified expenses in their activities, the parties to the transaction assign each other the obligation to compensate one of them for losses that occurred due to the fault of the other. The contract with the contractor does not include social guarantees (vacation, sick leave).

• No. 721 – the result of the work must exactly correspond to the quality specified in the contract. Law firms can perform above this level, but not below;
• No. 722 - the agreement must necessarily specify a warranty period for work under a contract, during which their properties must not deteriorate;
• No. 723 - if the contractor performed work, the result of which turned out to be unsuitable, he is obliged to eliminate all violations free of charge or reduce the amount of his remuneration. If the customer refuses to correct the defects, he has every right to terminate the contract;
• No. 724 - the contractor must make repairs or redo the work if breakdowns and defects are discovered within the warranty period. If it is not included in the warranty obligations under the construction contract, by law it is 2 years;
• No. 725 – the limitation period is limited to one year. It is customary to begin the countdown from the moment the entire complex of work is accepted. If the contractor carried out repairs, then the period is counted from the date of notification of the breakdown;

There is GOST B 15.306-79, according to which the contract must contain complete information about the contractor, the quality level of the work, the time of provision of the guarantee, etc.

Is it possible to refuse

If a guarantee is waived, this is stated in the terms of the contract (clause on the obligations of the contractor). If this is not the case, but the customer has discovered shortcomings or defects in the repair, then the question arises whether a claim can be made. The legislator gives a clear positive answer.

The meaning of the warranty period is that it is voluntary. This does not mean that the absence of an increased liability clause in the contract automatically releases the contractor from claims. For any type of work there is a legal time for filing complaints.

Warranty periods under a construction contract

The warranty period for work under a construction contract depends on whether the contract provides for this, what nuances are written out there, as well as on legislative guidelines.
The Civil Code states that if the warranty period for the work performed is not specified in the contract, the client can make claims to the contractor within a reasonable time. What a “reasonable period” is is not specified by law, but the limit is set at two years.
In the case of a construction contract, this period of time causes a lot of discussion. It often happens that construction defects cannot be detected during the first five years. In this aspect, clients find themselves helpless before the law and cannot protect their rights if the contract does not specify other warranty periods.

The deadline for discovering defects under a construction contract, if the agreement is less than two years, can be extended by the court to the legal limit if the client can prove that the defects appeared before the transfer of the object or due to errors made during that period of time.

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What to do when defective work is discovered

Identification of defects is the basis for making a claim. The trial procedure includes certain stages that must be completed.

Before commissioning

If the facility has not yet been put into operation, then we will not be talking about warranty periods, since the contractor has not yet completed all of its obligations. Only the transfer of the object into operation triggers the warranty. This means that deficiencies discovered by the customer must be eliminated not within the framework of the complaint procedure.

• collect evidence of the defect;
• contact the developer;
• demand that deficiencies be corrected.

Expert opinion

Lebedev Oleg Tarasovich

Lawyer with 7 years of experience. Specialization: family law. Extensive experience in defense in court.

The detected flaw must be recorded. Photos, measurement results - any confirmation of the defect will help in its further elimination.

Important! It is worth starting a dialogue with the contractor not with complaints, but through a business approach. Formally, the developer has not yet delivered the property, and the customer has not accepted it. This means pointing out the defect to the contractor rather than requiring it to be fixed.

After reception

The fact of transferring the object into operation automatically triggers the guarantee. If a defect was discovered after acceptance of the new building, it is recommended to do the following:

• collect evidence of the defect;
• prepare documentation;
• send the package to the counterparty;
• demand that the deficiency be corrected.

The claim procedure for settling the dispute will apply. The effectiveness of the proceedings depends on the quality of the evidence collected and the documentation compiled.

ATTENTION! If the object cannot be used due to a defect, then the warranty is suspended, i.e. the duration of liability is extended for this period of time.

The central role will be played by the claim - a written act in which the originator demands that existing defects be eliminated. The form must include the following information:

• information about counterparties;
• construction data;
• identified deficiencies;
• date of compilation and signature.

In the report, the applicant must describe the defects in detail. It is necessary to refer to the provisions of the law that allow you to demand the elimination of defects.

The applications will be evidence. This could be photographs, examination results, witness statements and other arguments.

A special case is when the object was put into use, but the contractor went bankrupt. Bankruptcy automatically removes the figure of the counterparty - it ceases to exist from a legal point of view. What should citizens do? Each developer has special compensation funds. They demand money from them for compensation.

In what order should the developer fulfill warranty obligations?

In the case of construction and repair warranties, the procedures are somewhat different. If it concerns the process of creating and transferring an object directly:

1. The customer must conduct an audit of the object he accepts. If deficiencies are detected, the corresponding act is transferred to the contractor.
2. The contractor analyzes the received report and, if necessary, can conduct its own examination.
3. If the performer agrees that he made a mistake, he must either eliminate the deficiencies at his own expense or at the expense of the customer (if problems with the object arose due to reasons not related to the work of the performer).
4. If the contractor does not agree with the customer’s comments, then he can be forced to fulfill his warranty obligations in court.

In the case of warranty repairs, the procedure will look like this:

1. If the warranty period has not yet expired, and the client has discovered defects, or they arose during operation, then the contractor is sent a request to carry out the required repairs. Here you can learn more about how to calculate penalties under a contract.
2. The contractor can either immediately accept the customer’s terms and fulfill warranty obligations, or conduct an examination to understand what caused the defects. If the cause is improper operation, then repairs will not be carried out. Also, normal wear and tear is not covered under warranty repairs.
3. If the contractor claims that the cause of the defects is not related to his activities, the client can seek help from the judicial authorities to conduct an independent examination.

Warranty repairs can be carried out by the contractor or third parties engaged by him. In this case, third parties will be responsible for quality not to the end client under the primary contract, but to the contractor.

What period is given for correction?

There is a clear gap in determining the time period that is given to the developer to eliminate defects. The legislation does not contain a clear deadline for correction.

The only wording that is expressly used in regulations is “reasonableness.” The contractor has a “reasonable” time to correct. In practice, this means that the customer can independently determine when he wants to see a serviceable object.

Do not give too short a period. For example, it will not be possible to restore a load-bearing wall in 2 days. If the customer does not have the competence or construction specialty, then it makes sense to enlist the support of experts.

IMPORTANT! There is no point in delaying your claim. In Art. 755 clearly states: the customer is obliged to submit claims within the same reasonable period. If the procedure drags on, the court may rule in favor of the counterparty.

A guarantee is a tool that increases the reliability of work for the end consumer. Construction is an industry with increased responsibility, and the state understands this by providing customers with certain mechanisms to influence their counterparties.