A contract is one of the most commonly used forms of transactions between entities. Since the contract is the performance of certain work with the transfer of the final results to the customer, the receiving party must be confident in the quality of this work. One of the forms of customer protection is guarantee deductions during contractual relations. In this regard, it is important to understand the features of their application and calculations.
The essence of guarantee retention in the contract
Arrangements of this kind in contractual relations are that one party to the transaction agrees to compensate the other party for losses if they arise as a result of poor-quality work.
Guaranteed retention can take the form of various forms, such as:
- payment of monetary compensation;
- elimination of deficiencies at no cost;
- restoration of the original appearance of the product and so on.
The role of such obligations is expressed in the performance of a protective function for the customer or contractor.
The legislative framework
Issues of guarantee deduction under a contract are regulated by the thirty-seventh chapter of the Civil Code. General conditions that must be considered when concluding a transaction are established by articles No. 721 to No. 725.
The determination of the terms of the guarantee and the quality of work accepted are considered by the first paragraph of Article 721, Article 722, and the fifth and sixth paragraphs of Article 724 of the Code. Periods for identifying deficiencies are also specified in article 724. The limitation period for cases of this category is determined by the first paragraph of article 725.
If we are talking about guarantee deductions under a construction contract, the features of these types of documents are established by articles No. 754 through No. 756 of the Civil Code of the Russian Federation.
Features of the preparation of the document
In order to correctly conclude a deal for a contract indicating the conditions of guarantee withholding, it is necessary to carefully study the details of the details of each clause of the contract and consider what details should be given special attention.
The contract must state that the work performed must be of appropriate quality. Moreover, even if such a condition is missed, this is not critical. The Civil Code of the Russian Federation establishes that the goods sold, the service provided and the work performed must comply with the established quality standards.
In addition, the terms of the warranty must be specified in the contract. As well as the rules for fixing, reviewing and settling claims by the customer. The indicated warranty periods may be established by agreement of the parties, but may not be determined less than in the corresponding SNiPs.
The contract must specify the procedure for judicial review of disputes arising if the contractor does not agree to draw up or sign an act on the identified shortcomings, as well as fulfill the obligations defined by the rules for guaranteeing retention in construction and during domestic work.
Set the following possible actions of the artist:
- The contractor is obliged to eliminate the identified deficiencies at his own expense, if he was admitted through his fault.
- The Contractor has the right to refuse to compensate or eliminate deficiencies in the work if they arose through the fault of the customer or third parties.
The conditions of guarantee withholding must be included in the section of the agreement on guarantees and sureties for each of the parties. They come into force if at least one of the following violations occurs:
- non-compliance of work quality with established standards;
- violation of the terms of the order;
- lack of funding for subcontractors (if necessary);
- non-observance of the deadlines for accepting work;
- untimely payment for quality work or lack thereof.
Determination of the guarantee amount
It can be installed in one of two models:
- Payment of guarantee deduction in the form of forfeit in case of violation of the deadlines for delivery of the results of work.
- Definition of structured compensation payments.
The amount of guarantee retention is determined on the basis of the cost of the contract and the general rules for determining the amount of compensation.
Upon liquidation of the contracting organization, all guarantee obligations may be transferred under the contract to the subcontracting organization. When committing such an action, all the obligations of the contractor are transferred to the new entity along with the right to receive money for work.
The posting of a guarantee deduction under a contract may be established in the form of the following types:
- deposit;
- pledge;
- retention of property and so on.
Performance criteria
For the correct posting in the accounting of guarantee deduction, it is necessary to consider all the criteria by which it can be determined whether the work is performed qualitatively or not, since the obligations to deliver the results of appropriate quality are established by the first paragraph of Article 721 of the Civil Code of the Russian Federation.
The results of the work that are transferred to the customer must comply with the conditions specified in the contract and are suitable for use throughout the warranty period. Responsibility for violation of this rule in relation to manufacturers of goods, performers of services and work to customers is provided for by the norms of Russian law.
In order to conduct and record guarantee deductions in case of violation of the essential terms of the contract, periods for the detection of obvious and hidden defects, as well as prescription periods, are determined.
With respect to construction contracts, the right to receive compensation arises in the following cases:
- If the quality of the work submitted does not meet the conditions established by the contract.
- If the result of the activity does not reach the indicators that are reflected in the technical documents for the construction.
The legislation provides for cases when the contractor is exempted from financial and actual liability, as well as from invoicing for guarantee deduction. According to the second paragraph of Article 755 of the Civil Code, the following are referred to such cases:
- the detected defect arose during normal wear and tear of the construction object;
- damage occurred during improper operation of the facility;
- the defect arose due to improper repair by the customer or persons involved.
If after accepting the work any shortcomings were identified, the contractor must be notified about this within the time limits established by law.
Terms for accepting the results of the contract
In order to identify a guarantee deduction letter to the contractor when identifying any deficiencies as a result of work, it is important to know the timing of the identification of defects in the activities of the contractor.
The fourth paragraph of Article 755 of the Civil Code of the Russian Federation establishes that the customer is obliged to notify the contractor of the identified shortcomings within a reasonable time. As a general rule, this period is one month. In relation to objects that are the subject of a construction contract, the terms are somewhat different.
The statute of limitations for construction projects is three years. According to paragraphs two through four in Article 724 of the Civil Code of the Russian Federation, the maximum term for identifying defects in the work of a construction contractor is five years. The term starts from the date the customer accepts the results of the work.
The warranty period for the result of the accepted work is established according to the norms of the first paragraph of Article 722 of the Code. This time period is mandatory prescribed in the contract concluded by the parties.
If the parties have not indicated other terms in the contract transaction, the rules established by the second, third and fourth paragraphs of Article 471 of the Code shall apply. If the defects are extremely serious in nature, which does not allow the operation of the construction site until they are eliminated by the contractor, the warranty period does not begin. After accepting the corrected work, the warranty period begins to be calculated.
The rules for applying the deadlines for filing a claim when delivering work of inadequate quality under the Civil Code of the Russian Federation are as follows:
- the right to file a claim is valid throughout the entire warranty period, which is established by regulatory legal acts, contracts or business practices (third paragraph of Article 724);
- if the warranty period for the facility is less than two years, you can file a complaint about the discovery of a defect after this period has passed. At the same time, the customer is obliged to prove by document that the shortcomings arose due to the fault of the contractor (fourth paragraph of Article 724).
If we are talking about litigation on the fact of poorly performed work, the limitation period in this case is one month, according to the first paragraph of Article 725 of the Code. With a phased delivery of work, it will begin to be counted from the date of receipt of the final result.
If the customer side declares the discovered defects in writing, the warranty period will be counted from the date of preparation of the relevant document.
Holding contract deductions during construction contract
This method of ensuring quality work is often used in the field of contract. The size of the financial guarantee is from five to fifteen percent of the total price of the contract.
Deductions can be made according to the following documents:
- According to the totality of acts on acceptance of work results (in the form of KS-2).
- According to the final act.
With the quality performance of the work, the parties must establish a period for the return of guarantee deduction. This period is determined by the parties in most cases in one of three ways:
- the end of the warranty period;
- the date of commencement of operation of the construction object;
- the day of receipt of the conclusion that all quality requirements are met.
In some cases, the parties set different periods for the return of withheld funds. In exceptional cases, holding a guarantee type may be replaced by a bank guarantee. In any case, the subject of such an interim measure is money.
Postings in accounting documents
For the correct reflection of the guarantee retention in 1C and the uniform inclusion of the costs of its payment, the organization needs to create a reserve. This item is included in this category of potential costs as part of production costs, together with the costs of maintenance and repair under warranty. This is established by Order No. 34n issued by the Ministry of Finance in the Russian Federation on July 29, 1998.
Features of posting guarantee deduction in accounting documents in different situations are as follows:
- Dt 62 plus sub-account for settlements with customers for the work performed (contractors), CT 46 - the amount of work performed according to form KS-3 (customers).
- Dt 62 plus a sub-account for settlements with customers for repair work by the contractor corresponds to Kt 62, which reflects the amount of repair paid by the customer when transferring to the percentage of the cost of installation and construction works.
- Dt 26 and Kt 89 with sub-accounts - the formation of a reserve for repairs under warranty.
- Dt 28 and Kt 10.69, 10.70 and 10.76 - expenses for repairs carried out during the warranty period.
- Dt 89 - reserve, Kt 28 - deducted expenses for warranty repairs.
When establishing the size of the proceeds from work delivered by the contractor and accepted by the customer, the following accounting type postings are generated:
- Dt 26 and Kt 67 - the amount of tax payable by users of roads.
- Dt 80 and Kt 68 - the amount of tax paid on the maintenance of housing funds.
- Dt 89 and Kt 80 - the amount of the unspent reserve, added to the financial total for the reporting period.
- Dt 51 and Kt 62 with sub-accounts - settlements with the other party under the contract, payment of debts for reserves for repair under the guarantee and restoration work after the expiration of the warranty period.
The procedure for identifying defects in the construction contract
According to the second paragraph of Article 755 of the Civil Code of the Russian Federation, the contractor is not liable for defects in the work performed under the work contract if he proves that they were formed through the fault of the customer or third parties (even if the defects were discovered during the warranty period).
When establishing the presence of deviations as a completed construction project, the customer is obliged to notify the contractor of this within a reasonable time (according to the rules of the fourth paragraph of Article 755). If the parties cannot voluntarily resolve the dispute, its consideration is transferred to the jurisdiction of the court.
Features of the guarantee in the construction contract and obligations under it are as follows. The rules of the first clause 721 of the article of the Civil Code of the Russian Federation determine the obligation of the contractor to provide a well-constructed facility within the time period established by the contract. At the same time, the determination of the quality level proceeds from the requirements, which are often applied to the results (objects) of this type.
The contractor is obliged to guarantee the customer that the erected building will fully comply with the requirements established by the technical documentation, which is an integral part of the contract. In addition, the contractor must ensure the normal operation of the facility during the warranty period.
Parties may refuse to establish any type of guarantee type obligation. Article 756 of the Civil Code of the Russian Federation establishes the general terms during which deficiencies discovered under a construction contract are to be eliminated free of charge. The basic warranty period is five years, regardless of whether the warranty period for the work is set.
If the indicated periods are determined on the basis of the requirements of Articles 756 and 724 of the Civil Code of the Russian Federation, the contractor is fully responsible for defects found within this time. In cases where the warranty period is less than five years, the contractor's liability is still calculated for a five-year period.
According to the rules of the second paragraph of Article 755 of the Civil Code of the Russian Federation, if defects or shortcomings in the work were identified during the warranty period, the contractor is obliged to prove his innocence. In the event of the collection of guarantee deduction in the course of the trial, it is the contractor who must justify his position that the damage arose due to the actions of other persons.
Identification of defects after the warranty period
If the warranty on the results of work has expired, if defects or defects are found, the obligation to prove the fault of the contractor passes to the customer. On the basis of the fourth paragraph of Article 724, he will have to prove his position that the deficiency arose before the moment of acceptance of the object.
The parties can set the warranty periods independently, but no less than specified by law. If the contractor is a citizen, the rule for calculating the terms for reimbursement is as follows: if the warranty period is less than two years (for the property - less than five), the deficiency identified after this can be eliminated free of charge by the contractor within the framework of Law No. 2300-1, which determines the conditions for protecting consumer rights (first paragraph of Article 29).
If the customer proves that the damage occurred before the acceptance of the results of the work, he has the right to demand that the contractor perform one of the following actions:
- Elimination of the deficiency at no cost.
- A commensurate reduction in the price of the contract.
- The obligations of the contractor to deliver a new result according to the same criteria that were specified in the contract. In this case, the contractor retains the defective object.
- Compensation of the customer’s expenses incurred by him for the independent elimination of the identified defects.
The customer also has the right to demand compensation for losses if they occurred due to a poor-quality result of work under the contract.
Warranty retention options must be specified in the contract along with other essential conditions. This will ensure that the interests of the parties are respected, and will also allow you to quickly receive compensation if a violation was nevertheless committed.