Case NF06-7419/2016 in case No. A55-4005/2015. On the collection of penalties for violation of deadlines for performing work under a contract and damages caused.

The contractor's obligations are established by the Civil Code and the contract. When a dispute arises and the contract is considered in arbitration court, a detailed and high-quality contract will help make a decision in your favor. Contract court: when does it become a reality and what to pay attention to?

Read in the article:

• Terms in the contract.
• If the contractor violated the deadlines under the contract.
• Poor quality work of the contractor and what to do about them?
• What might the customer require?
• How to prove a quality violation?
• Quality failure due to customer's material.
• The contractor lost the customer's property.
• Claim against the contractor.
• Legal assistance in litigation regarding contract agreements and representation in court.

Terms in the contract

In the contract, the parties indicate when the contractor should begin work, when it should finish it and hand over the result to the customer.

Can a court recognize an agreement as not concluded if it does not contain these terms? Without their approval, a court can recognize a work contract as not concluded, since some courts recognize the term condition as essential (Resolution of the Moscow District Arbitration Court dated November 26, 2019 in case No. A40-244370/2018).

Very often the work takes a long time, especially during construction, major repairs or reconstruction of real estate. In this case, break the work into stages and write down the deadlines for each stage. This will allow you to recover penalties, losses, or terminate the contract without waiting for the end of the contract.

Calculation of penalties under a contract calculator

What to do if there are two different real estate objects on one plot of land

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. The seller (contractor) is interested in the buyer (customer) fulfilling his monetary obligation in a timely manner. In case of late payment, the seller (buyer) will be interested not only in the counterparty paying his debt, but also in collecting sanctions from him for late payment. The seller (contractor), in the event of a delay in payment by the buyer (customer), may apply the following measures to the violator: collect interest for failure to fulfill a monetary obligation (clause

What to do if the contractor fails to meet deadlines

Be sure to send your claim to the contractor in the manner prescribed by the contract. A claim in court under a contract related to a violation of deadlines can be filed only 30 days after the claim is submitted, unless otherwise provided in the contract.

The customer has the right:

• charge a penalty (if such a condition is in the contract);
• terminate the contract and recover damages (if the contractor did not start work on time);
• do not accept overdue work and demand compensation for losses (if the customer no longer needs the result of the work).

What can be done if the contractor violates the work deadlines

According to the provisions of Art. 702, 708 and 740 of the Civil Code, the subject of the contract, the initial and final deadlines for performing work under it are essential conditions. Violation of such deadlines is common in practice, and the contractor is liable for it.

All measures of liability that are provided for violation of deadlines for completing work can be divided into legal and contractual. That is, the parties can stipulate the contractor’s responsibility in the concluded contract, and if it is not stipulated in this document, then the norms of the Civil Code apply.

The Civil Code provides for the customer’s ability to demand from the contractor:

1. Penalty payments.
2. Compensation for damages.
3. Payment of interest for the use of other people's funds.
4. Refusal to execute a contract.

Let us consider each of these measures of responsibility in more detail.

What is poor quality work?

There is extensive practice in disputes under contract agreements regarding the quality of work performed.

When will the court agree that the work is of poor quality?

• their result is unusable;
• contractual requirements are not met;
• established rules and norms are violated.

For construction contracts, these are SNIPs, SanPins, GOSTs (Resolution of the Arbitration Court of the East Siberian District dated June 19, 2017 in case A19-2517/2014).

What to do if the result of the work is of poor quality

Most likely, you will have to go to court with your demands; the contractor may refuse to satisfy them voluntarily. Therefore, correctly draw up the acceptance certificate and the defect detection report.

When accepting work, immediately report any visible defects and indicate them in the report. If the act was signed without any comments, then the court may refuse to satisfy the claim (Resolution of the Arbitration Court of the Moscow District dated August 3, 2018 N F05-10494/2018 in case N A40-226727/2017). Although some courts believe that signing an act without comments does not deprive the customer of the right to declare defects in the work (Resolution of the Arbitration Court of the Far Eastern District dated September 11, 2018 in case No. A73-3602/2018).

If during the operation of an item, vehicle, or building, defects are discovered within the warranty period that could not be seen immediately (hidden), be sure to call a contractor to draw up a report.

Attention! The court will accept a unilaterally signed act as evidence only if the contractor was summoned and he did not appear (Resolution of the Federal Arbitration Court of the Moscow District dated 08/02/2010 in case A40-118161/09).

Significant and non-material deficiencies under the construction contract

There are no mathematically clear criteria in the law that would allow us to rank deficiencies according to the degree of their significance, as well as any satisfactory guidelines. Hence there is scope for speculation and even abuse on both sides. And the risks for the participants in the relationship, meanwhile, can be significant. Indeed, depending on whether a particular defect is significant or not, various legal consequences may arise and, as a result, either the contractor (for untimely completion of work) or the customer (for untimely acceptance of the result of work) may be held liable. .

Two words about the very concept of “lack of work result / lack of work”: I will limit myself here to the fact that this term is normatively defined only in the legislation on the protection of consumer rights. Based on it, a lack of work is a discrepancy between the work or the mandatory requirements provided for by law or in the manner established by it, or the terms of the contract (in their absence or incomplete conditions - usually the requirements), or the purposes for which work of this kind is usually used, or the purposes of which the contractor was informed by the consumer when concluding the contract (preamble to the Law of the Russian Federation “On the Protection of Consumer Rights”). As you can see, the term itself is quite capacious and can be interpreted very broadly.

So, based on the Civil Code of the Russian Federation and established practice, according to the degree of legally significant non-compliance with one or another requirement, deficiencies in the result of work in relation to a construction contract are classified into two categories: significant and insignificant. Let’s try to highlight the criteria for determining both in order to make it easier for participants in the turnover to navigate this issue and, therefore, manage the corresponding risks.

The general provisions of the Civil Code of the Russian Federation on contracting once mention the situation of detection of so-called significant deficiencies and establish special legal consequences for this case (extended rights of the customer): paragraph 3 of Article 723 of the Civil Code of the Russian Federation stipulates that if the shortcomings are significant and irreparable, the customer has the right to refuse performance of the contract and demand compensation for losses caused. By the way, the same negative consequences apply if the contractor defaults - if the deficiencies were not eliminated by the contractor within a reasonable period established by the customer.

Many questions immediately arise: (i) are all other shortcomings (except for the essential ones) insignificant or is there a third category of shortcomings (let’s call them “ordinary”), (ii) how do significant shortcomings relate to irremovable ones, (iii) should there be such qualified deficiencies are both significant and irreparable (taking into account the conjunction “and”) or only one of the specified criteria is sufficient, (iv) which specific deficiencies should be considered significant, and more.

By the way, the normative definition of a significant defect contained in consumer legislation is based, among other things, on the identity of the concepts “substantial” and “irremovable”. In accordance with the Law of the Russian Federation “On the Protection of Consumer Rights” (preamble), a significant defect in work is an irreparable defect or defect that cannot be eliminated without disproportionate costs or time, or is identified repeatedly, or appears again after its elimination, or other similar flaws.

The issue of the significance of the shortcomings is also raised in the special provisions of paragraph 3 of Chapter 37 of the Civil Code of the Russian Federation on construction contracts, as well as in numerous examples of judicial practice. It is important that the term “material defect” itself is not used in special provisions on construction contracts.

Thus, paragraph 6 of Article 753 of the Civil Code of the Russian Federation provides for a special right of the customer in a construction contract to refuse to accept the result of work if deficiencies are discovered that:

1. exclude the possibility of using the result for the purpose specified in the construction contract; And
2. cannot be eliminated by the contractor or customer.

It is clear, firstly, that the legal consequences of special paragraph 6 of Article 753 of the Civil Code of the Russian Federation echo the consequences provided for by general paragraph 3 of Article 723 of the Civil Code of the Russian Federation (in the first case, the right to refuse to accept the result is provided, in the second - to refuse the contract; about the difference between these approaches we'll talk further).

Secondly, the criterion used in paragraph 6 of Article 753 of the Civil Code of the Russian Federation: “cannot be eliminated by the contractor or customer” essentially means that the deficiencies are irreparable (in the terminology of paragraph 3 of Article 723 of the Civil Code of the Russian Federation).

Thus, in the context of the entire Chapter 37 on the contract, it can be considered that paragraph 6 of Article 753 of the Civil Code of the Russian Federation refers to significant shortcomings, which should include those shortcomings that exclude the possibility of using the result of the work for the purpose specified in the construction contract.

Confirmation of the correctness of the approach that the shortcomings mentioned in paragraph 6 of Article 753 of the Civil Code of the Russian Federation should be characterized as significant, we can also find in judicial practice: for construction contract relations - “the customer who refused to sign the act and pay for the result of the work is obliged to prove the existence significant shortcomings in the result of the work "(Resolution of the Second Arbitration Court of Appeal dated April 6, 2017 N 02AP-917/17, as well as Resolution of the Fifteenth Arbitration Court of Appeal dated February 23, 2021 N 15AP-881/19, Resolution of the Eleventh Arbitration Court of Appeal dated July 30, 2015 N 11AP-8765/15).

Judicial practice allows us to identify a number of criteria that explain which specific shortcomings can be considered significant:

(a) the materiality of the shortcomings of the work result is understood as the irreparable lack of consumer value in such a result (Resolution of the Seventeenth Arbitration Court of Appeal of December 29, 2015 No. 17AP-16736/15);

(b) the shortcomings will be significant if their elimination requires dismantling the result of the work (Resolution of the Twentieth Arbitration Court of Appeal dated July 11, 2021 No. 20AP-2923/18);

(c) if the result of the work cannot be used (Resolution of the Eighth Arbitration Court of Appeal dated September 18, 2021 N 08AP-9318/18);

(d) if the deficiency does not allow the operation of the facility under a contract (Resolution of the Eighth Arbitration Court of Appeal dated September 18, 2021 No. 08AP-9318/18).

It is also worth noting that the issue of significant violations of quality requirements is addressed in Article 475 of the Civil Code of the Russian Federation (“Purchase and sale”) and is disclosed in detail. However, according to the court, the provisions of this article do not apply to the contract (Resolution of the Thirteenth Arbitration Court of Appeal dated June 13, 2021 No. 13AP-12511/18). True, no clear explanations for this position are given in the said resolution. There are no obstacles to applying this rule by analogy. As correctly noted by Braginsky M.I.: “due to the fact that under the contract for the manufacture of a thing, the contractor is obliged to transfer it, thereby creating the proximity of the contract and purchase and sale and, accordingly, the grounds are formed for the application of certain articles to contractual relations, regulating the purchase and sale agreement, by analogy" (“Contract Law. Contracts for the performance of work and the provision of services” (book 3) (edition corrected and supplemented) (Braginsky M.I., Vitryansky V.V.) (“Statute”, 2002).

At the same time, when determining a significant defect for the purposes of a construction contract, in my opinion, there is no reason to apply by analogy the Law of the Russian Federation “On the Protection of Consumer Rights” in the part in which it normatively defines the concept of a significant defect in work. For legislation focused on protecting consumer rights, as the weaker side of civil legal relations, the test for the materiality of the deficiency should be more sensitive than in general civil, and even more so in business relations, which are often construction contract relations.

However, the substantive approach to significant shortcomings of Article 475 of the Civil Code of the Russian Federation and the Law “On the Protection of Consumer Rights” is the same.

Thus, significant deficiencies in a construction contract, based on the interpretation of the law and judicial practice, are an open list of deficiencies that meet, inter alia, the following criteria (one or more):

(a) the nature of the defect excludes the possibility of using the result for the purposes of the contract;

(b) the deficiency excludes the possibility of exploitation of the result;

(c) the deficiency deprives the result of consumer value;

(d) eliminating the deficiency is disproportionately expensive;

(e) the deficiency is identified repeatedly.

Along with significant shortcomings, so-called non-material shortcomings have a separate legal significance for a work contract. It is known, for example, that the presence of such shortcomings may not prevent the acceptance of the work result and payment for it. Thus, in the Resolution of the Seventh Arbitration Court of Appeal dated October 31, 2021 N 07AP-6454/16, the court directly states that the presence of other, insignificant defects as a result of the work that can be eliminated without much damage to the interests of the customer does not prevent acceptance, they should be separately indicated in the acceptance certificate (the same in the Resolution of the Seventh Arbitration Court of Appeal dated November 10, 2015 N 07AP-10084/15). The customer, however, is not deprived of the right to demand their elimination (Resolution of the Arbitration Court of the Ural District dated June 1, 2021 N F09-1065/18 in case N A60-50229/2016).

Since the presence of such defects does not give the customer the right to refuse to accept the results and pay for them, the customer who has not paid for the work may be held liable for delay: “taking into account the fact that the defendant did not express a reasoned refusal to accept the work, the presence of significant deficiencies in the result of the work is not proved that in the absence of evidence of payment for the disputed work, the court collected the debt in the declared amount” (Resolution of the Seventeenth Arbitration Court of Appeal of October 17, 2021 No. 17AP-13279/19).

Unlike significant deficiencies, it is impossible to rely on anything in the law to determine the criteria for non-significant deficiencies. Therefore, precedents will play a leading role in understanding significant shortcomings. Below are some examples from judicial practice that characterize the shortcomings identified in the results of the work as insignificant or insignificant.

1. Deviations of the straightness of structures from regulatory requirements (Determination of the Investigative Committee in civil cases of the Supreme Court of the Russian Federation dated July 9, 2021 N 5-KG19-65);
2. Inconsistency in the color schemes of stained glass (which do not affect the consumer properties of stained glass, the appearance of stained glass and the facades of the building in general and do not require mandatory elimination) (Resolution of the Nineteenth Arbitration Court of Appeal dated July 19, 2021 N 19AP-3002/17);
3. Installation of additional elements of wall panels without sealing (Resolution of the Second Arbitration Court of Appeal dated April 6, 2017 N 02AP-917/17);
4. Deviation of the geometric parameters of the route from the plan (not affecting road safety) (Resolution of the Second Arbitration Court of Appeal dated August 5, 2021 N 02AP-5097/19);
5. The identified deficiencies do not prevent the use of the result of the work (Resolution of the Fifteenth Arbitration Court of Appeal dated August 16, 2021 No. 15AP-9905/17);
6. Deficiencies can be eliminated without any particular damage to the interests of the customer (Resolution of the Seventh Arbitration Court of Appeal dated March 4, 2015 N 07AP-867/15);
7. Non-critical non-compliance with building codes and regulations (Resolution of the Seventeenth Arbitration Court of Appeal dated November 2, 2021 N 17AP-13099/18);
8. Disadvantages of formwork and junctions (the junctions of the main covering have depressions with accumulated wastewater) (Resolution of the Eighteenth Arbitration Court of Appeal dated April 9, 2021 N 18AP-3121/18);
9. The deficiencies were formed as a result of deviations from the technology of performing work or as a result of exploitation and the impact of negative natural factors (Resolution of the Arbitration Court of the North Caucasus District of June 10, 2015 No. F08-3211/15 in case No. A63-9157/2013);
10. The disadvantages are insignificant, because do not limit the performance of water supply engineering networks, domestic and storm sewerage (Resolution of the Fourteenth Arbitration Court of Appeal of November 7, 2021 N 14AP-9509/19).

As conclusions, it can be stated that non-material deficiencies in a construction contract are considered to be those that meet some of the following criteria (without limitation to the above list):

(a) such shortcomings do not require mandatory elimination (the result of the work has consumer value even taking into account these shortcomings);

(b) can be eliminated without any particular damage to the interests of the customer;

(c) do not interfere with the use of the results of the work under the contract;

(d) the deficiency is expressed in a deviation from the technology for performing the work, but the result of the work did not suffer from this.

How to prove a quality violation

Contract disputes in court related to poor-quality work often require special knowledge.

If you conduct an examination before the trial, be sure to notify the contractor about this; he has the right to be present during its conduct.

Attention! The court may not accept the pre-trial examination as evidence, since the expert is not warned of criminal liability for giving an unreliable opinion .

When ordering an expert examination by the court, a lawyer will help you correctly formulate questions to be included in the ruling on ordering the expert examination. This is very important - the expert will only answer questions that are not included in the definition.

How to calculate the legal penalty under a contract for the full amount

Article 10. Limits of the exercise of civil rights 1. Actions of citizens and legal entities carried out solely with the intention of causing harm to another person, as well as abuse of rights in other forms, are not allowed. The use of civil rights to restrict competition, as well as the abuse of a dominant position in a market, are not allowed. market.

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But the fact is that the contractor himself called this agreement a contract. And the price of this agreement is 490,000 rubles. And if you do not notice the division into goods (log house) and work-services (installation, delivery), but count the manufacture of a log house as contract work, that is, calculate the penalties under Art. 28, and without the participation of Art. 23.1, then it turns out to be 3% for each day of delay, but not more than the cost of the contract.

The quality is compromised due to the customer's material. Whose fault?

If the work is carried out from the contractor's raw materials, he is fully responsible for them. What to do if the customer provided low-quality components?

It all depends on whether the defects could have been detected during a routine examination or not. Impossibility is proven by the contractor.

But, despite the fact that the burden of proof lies with the contractor, the customer should not behave passively in court. A lawyer will help you prove that the contractor, as a professional, should have seen the lack of raw materials and components provided. If necessary, an examination is appointed.

Claim against the contractor. How can a lawyer help?

If the contractor does not respond to the claim or refuses to satisfy the customer’s requirements related to the quality, duration of work, or loss of the item transferred to him, apply to the court for consumer protection (if the customer is an individual) or to the arbitration court (for companies and individual entrepreneurs) .

You can file a free statement of claim from an experienced lawyer Statement of claim for debt collection under a work contract

Do you want an individual claim? Our lawyers will file a lawsuit in 3 days!

It must be remembered that claims regarding the quality of work can be brought to court within a year (for real estate - 3 years).

Attention! The period begins to run from the moment the work is accepted, and if a warranty period is established for it, from the moment the defects are reported during the warranty period.

The resolution of disputes under a contract depends on the qualifications of the parties' representatives. A lawyer will help you correctly draw up a claim, statements and petitions, including ordering an examination, will help you collect evidence of the contractor’s guilt and convince the court to terminate the contract and collect penalties and losses.

Calculation of penalties under a contract calculator

A penalty is a penalty interest that a negligent counterparty is obliged to pay for late payment of a debt.
The penalty is set as a percentage of the overdue amount for each day of delay. The amount of the penalty is determined by the parties themselves when signing the agreement. For example, a penalty of 0.1% will correspond to 36.5% per annum. What is the formula for calculating the penalty? Amount of penalties = amount of debt * amount of penalties * number of days of delay / 100 How to calculate penalties if there were partial repayments? In the event that there have been partial repayments of overdue debt, penalties are calculated separately for each overdue payment, taking into account the number of days overdue for each payment. The penalty can be legal and contractual, in the form of a penalty or fine. By virtue of Art. Art. 330-332 of the Civil Code of the Russian Federation, a penalty (fine, penalty) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment. Upon a claim for payment of a penalty, the creditor is not required to prove that he suffered losses. An agreement on a penalty must be made in writing, regardless of the form of the main obligation.

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Does the contractor fail to fulfill its obligations?