Domestic law provides for contractor liability for inadequate work quality . In one of the norms of the Civil Code there are several options for attracting a guilty person to it. It is art. 723 of the Civil Code of the Russian Federation. Let's consider it in detail.
General information
A fairly large number of services are currently provided by private individuals or specialized companies. The relevant relationship is documented. For example, with citizens who provide certain services, a household contract is concluded . It spells out the obligations and rights of the parties, the main points regarding the provision of services. In case of violation of certain clauses of the agreement, a claim may be made. The developer , for example, in case of defects in the construction or failure to fulfill any obligations that worsen the use of the facility, may be sent a request to rectify the situation within a reasonable time.
Conflict Resolution Options
In situations where the service is rendered by the contractor deviating from the clauses stipulated by the agreement, as a result of which the result of the work has deteriorated significantly, or with other defects that rendered it unsuitable for subsequent use, the customer may, at his discretion, demand from the contractor:
- Gratuitously eliminate identified inconsistencies within a reasonable time.
- Proportional to reduce the cost of services.
- Reimburse the cost of rectifying the deficiencies . This requirement is allowed to be presented if the right to eliminate defects is provided for in the agreement.
All these provisions apply if other conditions for the contractor’s liability and customer capabilities are not established. They may be determined by law or by agreement of the parties.
Artist Rights
The contractor may, instead of eliminating the identified defects, perform appropriate measures again. At the same time, they will be carried out free of charge, and the customer will be compensated for losses caused by the delay. The customer, in turn, must return to the contractor the previously obtained work result, if this operation is possible.
Additionally
If the discovered defects were not eliminated by the contractor within a reasonable time or are significant and cannot be eliminated at all, the customer can refuse to fulfill the agreement. Moreover, he has the right to demand compensation for losses incurred in him. The condition in the agreement on the release of the contractor from liability for specific defects does not preclude the application of established coercive measures. This provision applies to cases where it is proven that the discrepancy arose due to the guilty inaction / action of the hired entity. The contractor who provided the material for the implementation of the agreed activities is responsible for its quality to the customer. In this case, rules 457 of the Code are applicable.
Art. 723 of the Civil Code of the Russian Federation with comments
In accordance with the considered norm, the identification of defects by the customer in the result accepted from the contractor acts as the basis for the application of measures established by law. They, in accordance with Art. 723 of the Civil Code of the Russian Federation are:
- Deviations from the clauses of the agreement, which significantly worsened the state of the result of the measures taken.
- Other defects, as a result of which the object has become unsuitable for use as intended by the contract. If the relevant criteria are not established in the agreement, then the ability to carry out normal operation is assessed.
The given wording is consistent with quality indicators, which are applied according to the rules of article 721 (paragraph 1).
Important point
According to some experts, the name of the article under consideration . 723 of the Civil Code of the Russian Federation is not entirely consistent with the content. Normally, it is not only about the measures of influence in case of revealing discrepancies as a result of the performed activity to the points of the agreement. The article also defines other tools - means of operational impact on the contractor. According to the provisions of Art. 723 of the Civil Code of the Russian Federation , the customer may present one of the stipulated requirements. This can be a gratuitous liquidation of the defect within a reasonable time, a commensurate reduction in the cost of the service, or compensation for the costs that the customer incurs to rectify the situation. The affected subject may use these options at their discretion. However, choosing any one measure, he is not entitled to apply any other. It is advisable to cite a resolution of the Federal Antimonopoly Service of the East Siberian District. The act states that the customer, referring to the improper performance of work, sent a claim for damages. At the same time, it was established in the appellate court that the subject had previously taken advantage of one of the possibilities given in Art. 723 of the Civil Code of the Russian Federation . Accordingly, he cannot revert to the provisions of the norm.
Private disputes
When the customer uses the opportunity to present a request to the contractor to compensate for the expenses incurred to eliminate defects, if the corresponding clause is present in the agreement, the provisions of article 397 of the Code should be taken into account. Normally, the following is indicated. If the debtor has not fulfilled the obligation to manufacture and provide the property for economic management, ownership, operational management or use of the lender, to render him certain services, the latter has the right to entrust this to a third party or to carry out the necessary measures independently, unless otherwise follows from the substance of the transaction, legislation, agreement, normative acts. Moreover, he may demand compensation from the debtor for the costs and losses incurred. Thus, for example, a claim may be brought against the developer . Experts point out that the opportunity provided for in paragraph 1 of this article should be qualified as a special case of the application of Code 397 in practice.
Dispositiveness
In the norm under consideration, the list of permissible measures is not limited. The provisions of the article allow the establishment of additional possibilities for the customer to influence the contractor with legal acts or an agreement. So, according to Art. 737 (p. 1), if defects are detected during acceptance of the result or after it during the warranty period or (if it is not installed) a reasonable period, but no later than two years (for real estate - five years) from the date of the specified event, the creditor can use any from the established art. 723 opportunities. He has the right to demand free re-provision of the service, compensation for expenses incurred in connection with the correction of defects on his own or with the help of third parties. If the subjects have concluded a household contract , then, according to Article 739 of the Code, the customer, in case of violation by the contractor of the agreed points, can use the opportunities defined for him by the norms 503-505. Thus, the range of rights of the injured person is expanding significantly.
Evaluation Categories
If the customer identifies significant deficiencies, the legislation gives him the right to use one of the operational measures established by paragraph one of the rule in question. But in the event that the injured party discovers defects that cannot be corrected and do not allow reaching the goal of the agreement, it may demand damages. The key characteristic of the shortcomings is their materiality. It should be understood as the impossibility or inadmissibility of using an object (result) for its intended purpose. Significant is also called a flaw that cannot be eliminated, or for which significant costs are required, or in connection with which the consumer loses what he had counted on when concluding the transaction. In the sense of clause 3 of the considered norm, this category of defects also includes those that were not eliminated within a reasonable time after their identification by the customer.
Refusal to fulfill the agreement
It is allowed if the identified deficiencies are unrecoverable. These include, among other things, defects that, after their correction, reappear. It is worth saying that not only shortcomings can be recognized as significant, but also a deviation from the clauses of the agreement. For example, it can be expressed in the fact that the contractor does not receive a positive expert opinion, which, in turn, makes the implementation of the project impossible.