Penalty for delay under a work contract (work performance): how to establish it in the contract, charge it and collect it?

Article 708 of the Civil Code of the Russian Federation. Deadlines for completing the work (current edition)

1. Since the moment of conclusion and the moment of execution of a work contract never coincide, the deadline for completing the work is an essential condition of the contract. As a result, the commented article obliges the parties to indicate in the contract the initial and final deadlines for the completion of the work. In addition, it is possible to specify intermediate deadlines.

Moreover, if the parties, when signing a work contract, agreed on the terms for completing the work, and subsequently, by an additional agreement, canceled the agreement on the period for completing the work and did not set a new deadline, then the contract itself is recognized as not concluded. The opposite is also true: if the parties did not agree on the deadlines for completing the work when signing the contract, but subsequently established them in an additional agreement, the contract is concluded.

The meaning of indicating the initial, intermediate and final deadlines for the production of work is that the contractor is responsible for their violation, unless otherwise established by legal acts or agreement of the parties. Since the norm is formulated dispositively, the contractor may be released from this responsibility (for example, if his violation of the initial deadline does not affect compliance with the completion date).

In judicial practice, a position has emerged according to which, if the terms of the work are not agreed upon in the contract, such terms should be determined according to the rules of Art. 314 of the Civil Code of the Russian Federation about a reasonable period is impossible.

2. Violation by the contractor of the deadlines for completing the work provided for in the contract means a delay and may have various consequences. If the initial deadline is violated, the customer has the right to refuse to fulfill the contract and demand compensation for losses from him (clause 2 of Article 715 of the Civil Code of the Russian Federation); if any deadline is violated, the customer has the right to refuse to accept the performance and demand compensation for damages if such performance has lost interest for him (clause 3 of the commented article).

Article 28. Consequences of violation by the contractor of deadlines for completing work (rendering services)

1. If the contractor violated the deadlines for performing the work (rendering the service) - the start and (or) completion dates for the work (rendering the service) and (or) intermediate deadlines for the completion of the work (rendering the service) or during the execution of the work (rendering the service) it became obvious, that it will not be completed on time, the consumer has the right to:

(as amended by Federal Laws dated December 17, 1999 N 212-FZ, dated October 25, 2007 N 234-FZ)

assign a new term to the executor;

(as amended by Federal Law No. 212-FZ of December 17, 1999)

entrust the performance of work (provision of services) to third parties for a reasonable price or perform it on their own and demand compensation from the contractor for expenses incurred;

demand a reduction in the price for performing work (providing a service);

refuse to fulfill the contract for the performance of work (provision of services).

(as amended by Federal Law dated December 21, 2004 N 171-FZ)

The consumer also has the right to demand full compensation for losses caused to him in connection with violation of the deadlines for completing the work (rendering the service). Losses are compensated within the time limits established to satisfy the relevant consumer requirements.

(as amended by Federal Law No. 212-FZ of December 17, 1999)

2. New deadlines for the completion of work (provision of services) assigned by the consumer are indicated in the contract for the performance of work (provision of services).

(as amended by Federal Law No. 212-FZ of December 17, 1999)

If the new deadlines are missed, the consumer has the right to present to the contractor other demands established by paragraph 1 of this article.

3. The price of the work performed (service rendered), returned to the consumer upon refusal to fulfill the contract for the work performed (service rendered), and also taken into account when reducing the price of the work performed (service rendered), is determined in accordance with paragraphs 3, 4 and 5 of Article 24 of this Law.

Interim period(s) for the completion of work under the contract

The intermediate period(s) determines the moment when the contractor completes individual stages of work (performing certain types of work).
Agreeing on an interim deadline(s) for completing the work

https://www.youtube.com/watch?v=ytpolicyandsafetyru

Agreeing on an intermediate deadline(s) is not mandatory for the parties, but it is in the customer’s interests to establish it if the work is lengthy or complex and there is a need to monitor the progress and quality of the work by accepting its intermediate results (Article 715 of the Civil Code of the Russian Federation).

To agree on intermediate deadlines, the parties must identify specific stages of work (with a definition of the list and scope of work for each of them) and, taking into account the start and end dates of the work, indicate the completion date of each stage. The deadline for completing the last stage of work will be the deadline for completing all work.

Stage I. Manufacturing of equipment according to the customer’s technical documentation – until March 1, 2021;

Stage II. Installation of equipment at the customer’s premises - until March 15, 2019;

III final stage. Start-up and commissioning of equipment - until April 30, 2021.”

When agreeing on this condition, the contractor should take into account that he may be held liable for violating the intermediate deadline(s). In particular, the customer may demand the recovery of a penalty (Article 330 of the Civil Code of the Russian Federation) or compensation for losses caused by such a violation (Article 393 of the Civil Code of the Russian Federation).

If the interim deadline(s) for completing the work are not agreed upon

In this case, the contractor will be obliged to complete all the work before the expiration of the deadline for its completion, and individual stages of work (individual types of work) must be carried out in such a way as to ensure completion of the work within the specified period (Clause 1 of Article 708, Clause 2 of Art. 715 Civil Code of the Russian Federation).

If the parties agreed on any other deadlines in the contract or its annexes (in addition to the start and completion of work), but did not associate them with the implementation of specific stages of work (did not define these stages), then such deadlines are not considered interim within the meaning of paragraph 1 of Art. . 708 of the Civil Code of the Russian Federation. If they are violated, the customer will not have the right to demand that the contractor pay a penalty for late completion of the work, unless the deadline is violated.

Article 27. Deadlines for completing work (rendering services)

1. The contractor is obliged to carry out the work (provision of services) within the period established by the rules for the performance of certain types of work (provision of certain types of services) or the contract for the performance of work (provision of services). The contract for the performance of work (provision of services) may provide for a period for performing the work (provision of a service), if it is not provided for by the specified rules, as well as a period of shorter duration than the period established by the specified rules.

2. The deadline for performing work (providing a service) may be determined by the date (period) by which the work (providing the service) must be completed and/or the date (period) by which the contractor must begin performing the work (providing the service). (as amended by Federal Law No. 212-FZ of December 17, 1999)

3. If the performance of work (provision of services) is carried out in parts (delivery of periodicals, technical maintenance) during the validity period of the contract for the performance of work (provision of services), appropriate deadlines (periods) for the performance of such work (provision of services) must be provided. .

By agreement of the parties, the contract may also stipulate deadlines for completing individual stages of work (interim deadlines). (Clause 3 introduced by Federal Law of December 17, 1999 N 212-FZ)

Commentary on Article 27

One of the most important criteria for assessing the level of work and services is compliance with deadlines for their completion. The law establishes that the contractor is obliged to complete the work (provide the service) within the time limits established by the rules on certain types of work and services or by the contract. The contract may provide for deadlines for the completion of work and provision of services if they are not provided for by the mentioned rules or are reduced in comparison with those established in the rules. Thus, the main legal form of regulation of the timing of works and services is state regulation, and the contract is of an auxiliary nature. This circumstance is an important step forward in protecting the interests of consumers, since, on the one hand, it removes the issue of deadlines from the competence of departments and the executors themselves, and on the other hand, from the competence of legislative bodies, which allows for prompt resolution of issues. The regulation of the procedure for establishing deadlines for the performance of work and the provision of services in the Law and in the Civil Code is basically identical.

Art. 708 of the Civil Code establishes that the contractor is liable for violation of any established deadline (initial, final, intermediate), unless otherwise established by law and other legal acts or contract. If the contractor does not begin work on time or performs it so slowly that completing it by the deadline becomes clearly impossible, the customer has the right to refuse to fulfill the contract and demand compensation for losses (clause 2 of Article 715 of the Civil Code).

Federal Law of the Russian Federation of December 17, 1999 N 212-FZ, the last sentence of paragraph 2 of Art. 27 has been excluded from this paragraph and the regulation of the issue raised in it has been moved to a new additional paragraph 3. The changes made in this case are as follows. The deadlines for performing work (providing services) in parts, which were called “private” in the previous edition, are called “appropriate”. In accordance with paragraph 1 of Art. 708 Civil Code in paragraph 3 of Art. 27 of the Law provides for the possibility of establishing in a contract, by agreement of the parties, deadlines for the completion of individual stages of work (interim deadlines).