Disputes under a construction contract

Claim for violation of deadlines

In accordance with the terms of the contract No. 791D491 dated 08/09/2016, concluded between IP Pashchenko K.L. (Contractor) and Kovalchuk A.V. (Customer), the Contractor has undertaken to carry out construction work on the reconstruction of the porch in the house at the address: Vorkuta, lane. Tikhonova, 77.

In accordance with Art. 747 of the Civil Code of the Russian Federation, the Customer is provided with access to the land plot to carry out construction work throughout the entire term of the contract.

In accordance with clause 3.8 of Agreement No. 791D491 dated 08/09/2016, the completion date for the work was set at 09/09/2016, acceptance of the work should have been carried out within 3 calendar days after the actual completion of the work.

However, in violation of the requirements of Article 708 of the Civil Code of the Russian Federation, clause 3.8. The contracts and construction work were completed on September 29, 2016, the work acceptance certificate was signed on September 30, 2016. Thus, the Contractor violated the deadlines for fulfilling its obligations.

In accordance with Art. 730 and 740 of the Civil Code of the Russian Federation, the norms of the Law on the Protection of Consumer Rights are applied to household contracts. In accordance with Art. 28 of the above Law, if the deadlines for completing the work are violated, the Customer has the right to assign a new deadline for the completion of the work.

Articles on the topic (click to view)

Legal address for LLC registration
Universal transfer document (UDD)
Within 3 years from the date of state liquidation, tax authorities can return to the liquidated company.
Russian Patent Office Rospatent: functions, structure and features of interaction
Criminal procedural guarantees: concept, types, meaning.
Conditional release of goods subject to technical regulation measures
Simplified bankruptcy procedure for individuals: bill 2021

Violation of the deadlines entails the accrual of a penalty to the consumer for each day (hour, if the period is defined in hours) of delay in the amount of three percent of the price of performing the work (rendering the service) or, when it is not defined, the total price of the order. The penalty for violation of deadlines for completing the work is collected for each day of delay until the completion of the work.

Claim under a contract

Please note that the procedure for determining the price of a work contract and the actions of the parties to the contract if it is necessary to carry out additional work and change the prices of materials is determined by Art. 709 of the Civil Code of the Russian Federation.

The contractor has no right to demand an increase in the fixed price even in cases where it was not possible to determine the full scope of necessary work and expenses. The exception is a significant increase in the cost of materials, third party services, etc., which is not applicable to the situation under consideration.

Based on the above, I demand that, within 3 calendar days from the date of receipt of the claim, I transfer into my possession and use the car that belongs to me by right of ownership and hand over the result of the work performed under the contract, otherwise I will be forced to go to court with a statement of claim for the recovery of a penalty, on the recovery of property from illegal possession, which will entail the need for you to reimburse legal costs and apply monetary sanctions for improper fulfillment of obligations under the contract.

Cases of mandatory pre-trial settlement under a contract

Legally, for this type of agreement, compliance with the claims (pre-trial) procedure for resolving disputes is not mandatory: dissatisfaction of any party with the performance of obligations by the counterparty is grounds for going to court.

However, a claim under a work contract is mandatory in a number of cases, including:

if the pre-trial settlement procedure is stipulated by the terms of the contract;
if the parties to the agreement are a legal entity, and the claim is formed for debt (Arbitration Procedure Code of the Russian Federation, Article 4);
if the dissatisfied party has the intention to change or terminate the contractual relationship (Civil Code of the Russian Federation, Art. 452).

Lawyers, however, recommend sending letters of claim to the counterparty in all other cases. A well-drafted claim is evidence of a desire to resolve the dispute peacefully, which, if the dispute goes into the category of litigation, will certainly be positively assessed by the court.

Take advantage of the experience and knowledge of our lawyers to draw up a letter of claim, which is guaranteed to become the basis for the fulfillment of all your legal requirements to the counterparty without transferring the dispute to litigation:

The role of the claim

According to the law, a work contract, like any other similar document, implies the fulfillment by one of the parties of their obligations to carry out any work, and the second - their payment in a pre-agreed amount and order.

If any of the parties violates at least one clause of this agreement, its counterparty can file a claim - this is its right enshrined in the legislation of the Russian Federation.

The formation of this document is the first step towards resolving controversial and conflict situations

Based on the above, we can say that the role of the claim is quite large. It allows not only to identify the problems that arose during the execution of the contract, but also to promptly prevent the development of the situation and bringing the case to court.

What is a construction contract and a claim under a construction contract?

Construction contract - an agreement for construction, reconstruction, installation, commissioning and other construction work, incl. and intended to satisfy the household or personal needs of the customer (Article 740 and Article 730 of the Civil Code of the Russian Federation). The document provides for the obligation of one party to carry out the work, and the other to accept and pay for it in the agreed amount and manner.

In case of violation of the terms of the construction contract, the parties bear civil liability. Fulfillment of obligations can be ensured by a penalty (fine, penalty), pledge, retention of the debtor's property, surety, bank guarantee, deposit and other methods provided for by law or contract.

If the counterparty has violated any of the clauses of the agreement, you have the right to send him a claim, i.e. make reasonable demands to fulfill the terms of the contract in full or to compensate for losses. This is an effective way to resolve a conflict without going to court and resolve a dispute without unnecessary expenses for paying state fees and with significant time savings.

The claim must be made in writing. The purpose of the document is to convey to the other party information about what was done wrong or not done at all, and how this situation can be corrected. Requirements must be stated competently, clearly and correctly.

What requirements can be put forward in a claim?

Regarding the requirements, it all depends on which clauses of the contract were violated. They may concern:

the cost of performing work in terms of reduction (if the work is not completed in full, of poor quality or not on time);
compensation for unsatisfactorily performed work;
termination of the contract;
reimbursement of costs incurred, etc.

In addition, if the terms of the agreement are violated, each party may insist on paying a penalty, even in cases where this provision is not stated in the main document (here Article 332 of the Civil Code of the Russian Federation comes into force, which makes such an agreement void).

Sample

______________________________________________________________ [name of the Contractor, OGRN, INN, location, telephone, email address and other details]

______________________________________________________________ [name of the Customer, OGRN, INN, location, telephone, email address and other details]

Ref. _______________________________ [outgoing message number, document date]

_____________ [date of conclusion of the contract] between _____________ [name of the Contractor] and ____________ [name of the Customer] a contract was concluded _____________ [contract number and its name] (hereinafter referred to as the Contract) for the performance of work _____________ [name of work].

The Contractor fulfilled all of its obligations under the contract and delivered the completed work on time and in full, as confirmed by _____________ [supporting documents].

The cost of work under the contract amounted to: _____________ [amount].

There were no claims regarding the quality and timing of the work from the Customer; all documents were signed by the Contractor without reservations.

The customer did not properly fulfill the obligation to pay for the work performed under the contract.

In accordance with Articles 309 and 310 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), obligations must be fulfilled properly; unilateral refusal to fulfill obligations is not allowed, except in cases provided for by law.

In accordance with paragraph 1 of Art. 702 of the Civil Code of the Russian Federation, under a contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver its result to the customer, and the customer undertakes to accept the result of the work and pay for it.

According to paragraph 1 of Art.

711 of the Civil Code of the Russian Federation, if the contract does not provide for advance payment for the work performed or its individual stages, the customer is obliged to pay the contractor the agreed price after the final delivery of the work results, provided that the work is completed properly and on time or with the customer’s consent ahead of schedule.

According to _____________ [clause of the agreement establishing the procedure and terms of payment].

Based on the above, _____________ [name of the Contractor] demands within _____________ [period under the contract or law] from the receipt of this claim:

pay the debt for work performed under the contract in the amount of: _____________ [amount of debt];
pay the penalty under the contract (if the penalty is provided for by the contract or law).

Details for transferring funds:

_____________ [indicate the Contractor’s bank details]

If payment is not made within the specified period, _____________ [name of the Contractor], in turn, will be forced to apply to _____________ [name of the arbitration court] to recover the specified amount, and the amount will increase by the amount of the state duty, payment for the work of a lawyer (representative).

A peaceful settlement of this issue will save your time and money.

Sample claim in case of violation by the contractor of the deadlines for the work performed . Article 28 of the Law on Protection of Consumer Rights. If you simply need to refuse work (services) for family reasons or without explanation, you must use a different sample.

Name, address of the executing organization _______________________________________ Full name, address, contact telephone number of the consumer _______________________________________

“___”____200__ I entered into an agreement with you for ________ (description). The cost of the work amounted to ___ rubles, which is confirmed (by contract, specification, order, etc.).

The specified amount of money was paid by me _____ (in parts / in full). In accordance with clause_ of the Agreement, the period for performing work (rendering services) was ______.

In accordance with Art. 27 of the Law “On the Protection of Consumer Rights”, 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).

In accordance with Art. 28 of the Law “On the Protection of Consumer Rights” , if the contractor violated the deadlines for performing work (providing a service) - the start and (or) completion dates for performing the work (providing a service) and (or) intermediate deadlines for performing the work (providing a service) or during the performance of the work (provision of a service) it has become obvious that it will not be completed on time, the consumer, at his own discretion, has the right to : - assign a new deadline to the contractor; - entrust the performance of work (provision of services) to third parties for a reasonable price or perform it on their own and demand reimbursement 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).

Expert opinion

Makarov Igor Tarasovich

Legal consultant with 8 years of experience. Specialization: criminal law. Extensive experience in document examination.

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.

New deadlines for the completion of work (provision of services) are indicated in the contract for the performance of work (provision of services), or another document sent to the contractor . 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.

In case of refusal to execute a contract for the performance of work (provision of a service), the contractor has no right to demand reimbursement of his expenses incurred in the process of performing the work (provision of a service), as well as payment for the work performed (service rendered), except if the consumer accepted the work performed (service provided). According to clause

5 tbsp. 28 of the Law “On the Protection of Consumer Rights”, in case of violation of the established deadlines for completing the work or new deadlines assigned by the consumer on the basis of paragraph 1 of this article, the contractor pays the consumer for each day (hour, if the period is defined in hours) of delay a penalty in the amount of 3% of the price of the work. , and if the price for performing the work is not determined by the work contract - the total price of the order.

The amount of the penalty collected by the consumer cannot exceed the price of a separate type of work performed or the total price of the order, if the price of a separate type of work is not determined by the contract for the performance of work.

(If the contract concluded with you specifies the amount of the penalty that is less than 3%, then this clause of the contract is invalid by virtue of Article 16 of the Law “On Protection of Consumer Rights”. In this case, the following phrase should be included in the text of the claim):

In accordance with clause of the Agreement (indicate the item number), the amount of the penalty for delay by the contractor in completing the work is provided in the amount of (indicate the amount). At the same time, according to Art.

16 of the Law “On the Protection of Consumer Rights”, contract terms that infringe on consumer rights in comparison with the rules established by laws or other legal acts of the Russian Federation in the field of consumer rights protection are declared invalid. This clause of the contract contains a penalty amount that is smaller than that provided by the Law, and therefore it is invalid.

In connection with the above, I demand (to state one of the demands, as well as calculate and indicate the penalty. Depending on what demand is made, the law establishes deadlines for considering such a claim)

Deadlines for consideration of a claim depending on the claimed requirement (indicate the required article/select an option after the claim has been selected)

1. According to Art.

30 of the Law “On the Protection of Consumer Rights”, deficiencies in the work (service) must be eliminated by the contractor within a reasonable time specified by the consumer . The deadline assigned by the consumer for eliminating defects in the goods is indicated in the contract or in another document signed by the parties or in a statement sent by the consumer to the contractor.

2. In accordance with Art.

31 of the Law “On the Protection of Consumer Rights”, consumer demands for a reduction in the price for work performed, for reimbursement of expenses for eliminating deficiencies in the work performed on their own or by third parties, as well as for the return of the amount of money paid for the work and compensation for losses caused in connection with the refusal execution of the contract are subject to satisfaction within ten days from the date of presentation of the corresponding demand.

3. The consumer’s demands for the free production of another thing from a homogeneous material of the same quality or for the repeated performance of work (provision of a service) are subject to satisfaction within the period established for the urgent completion of work (provision of a service), and if this period is not established, in the period stipulated by the contract for the performance of work (provision of services), which was improperly fulfilled.

If my demands are refused, I will be forced to file a complaint with Rospotrebnadzor in order to verify compliance with ______ (name of the seller) consumer protection legislation, as well as to the court to protect my interests, where, in addition to the above requirements, other requirements will be put forward , including the collection of a penalty for delay in satisfying consumer demands, compensation for moral damage, reimbursement of expenses for the services of a representative and other legal costs. In addition, the court will collect a fine from you for failure to voluntarily satisfy the consumer’s requirements in the amount of 50% of the amount awarded by the court in favor of the consumer in accordance with Article 13 of the Law of the Russian Federation “On the Protection of Consumer Rights”.

I ask you to consider my claim on a voluntary basis.

CLAIM ACCEPTED BY ________________________________/_______________ (full name, position) (signature) “____” ______ 201__

Forms and samples of claims and responses under a contract

I have prepared forms and samples of claims under a construction contract, relevant in 2021, and sample responses to claims for various situations. I also provide the rules for filing a pre-trial claim, the procedure and deadlines for sending claims with references to legislative norms, and indicated the deadlines for considering letters of claim.

You can competently file a claim without contacting a lawyer. To help you:

Claim form.
Sample complaint to the customer regarding payment.
Sample claim for non-performance of work.
Sample claim for violation of work deadlines.
A sample claim requesting that deficiencies in the work be corrected.
Sample claim for elimination of deficiencies in the results of work under a construction contract during the warranty period.

To prepare a response to a claim under a contract, you may find the following helpful:

Claim response form.
Sample response to a complaint about poor quality work.
Sample response to a warranty claim.
Sample response to a complaint about missed deadlines.
Sample response to a claim for violation of payment terms under a contract.

The deadline has not been violated, but the service will definitely not be provided on time

You have entered into an agreement containing a term for the provision of the service.

This deadline has not yet arrived, but it has become obvious to you that the service will not be provided on time.

other clients of your contractor who entered into a contract earlier reported that the service was not provided to them
Contractor's employees do not answer phone calls
the contractor closed the office where you concluded the contract without informing his clients about the move
the contractor is undergoing liquidation or bankruptcy proceedings or there are signs that they will be introduced in the near future
other similar signs

if it becomes obvious that the service will not be provided within the agreed period, you as a customer have the same set of rights as in the case where the deadline has already been violated.

The obviousness of a violation of a deadline in the future is not always an objective thing and is subject to proof.