Contracts are quite popular, because with their help you can regulate a fairly wide range of economic relations. A claim under a contract is one of the ways to protect the rights of one of the parties from violations.
A bit about contracting
The contract assumes that one side - the customer - instructs, and the other side - the contractor - assumes the obligation to manufacture, remodel, process a certain thing or perform a certain type of work at the request of the customer.
This type of contract is regulated by the provisions of Chapter 37 of the Civil Code of the Russian Federation, and in addition to the general provisions on the contract, the section also contains special articles on household and construction contracts with their own specifics.
Having concluded a contract, the parties assume the agreed obligations, and if they are not fulfilled, they receive the right to claim the counterparty. Usually in such a situation a claim is drawn up under a contract.
Breach of contract
Where there are agreements, there may be non-compliance with them, because the circumstances are different, including those that the party cannot influence - force majeure.
In addition, the specificity of this agreement implies the possibility of attracting third parties - subcontractors, which creates an additional probability of non-compliance with the terms of the agreement. In such a situation, the main contractor, or as the law calls it, the general contractor, is responsible for compliance with the agreements between both parties.
When can I make a complaint?
The basis for the claim may be provided both by law and directly in the contract. Here are some of them:
- identification of defects and defects in the reception of the result of work;
- violation of deadlines;
- deviation in work from the terms of the contract;
- detection of hidden defects;
- non-compliance with other clauses of the agreement.
It may be that the expired contractor has not yet started work when the customer has already lost interest in their result. In this case, a claim may be brought under the contract for non-performance of works.
Customer is also responsible
There is an opinion that the main burden of responsibility for the contract is the contractor. This is not so: a work contract is a two-way obligation, both counterparties have rights and obligations, therefore, the contractor also has the right to demand the customer.
Claim to the customer under the contract may be made in the following cases:
- Failure to provide assistance to the contractor: here it is possible to demand compensation for losses, costs caused by downtime, extension of the terms of work or an increase in the contract price.
- Delays in the provision of materials, equipment, design and other documentation provided for by the contract, access, transfer of things and other circumstances that make it impossible to fulfill the contract on time.
- Non-payment of work performed or delay in payment, provided that the contractor himself has fulfilled the obligations of the contract.
The parties may provide for other obligations of the customer, in case of failure of which the contractor receives the right to present a claim to the violator.
Troubleshooting shortcomings
The customer should be extremely careful when accepting work and carefully check the result transmitted by the contractor, because the ability to submit a claim in the future directly depends on the observance of the work delivery and acceptance procedure.
Legal advice: Be sure to include all comments in the acceptance certificate.A detailed description of the identified deficiencies should be indicated immediately before the signature of the host or set out in a separate document, indicating such an application in the act itself. Only in this case can a claim be made under a work contract: the contractor will be required to eliminate the shortcomings of the work.
There is an exception to this rule - it concerns hidden flaws, that is, those that could not be identified during a routine inspection or that were deliberately hidden by the contractor. In this case, the customer should immediately notify the contractor of the “newly discovered circumstances”.
Legal advice: do it in writing and as soon as possible, because the law provides for a “reasonable time” for notification, and this concept is evaluative and relative.
Construction contract: what is its feature?
The law establishes some specifics when performing a construction contract - in the Civil Code it is regulated by a separate paragraph. The object of such an agreement is a building or structure, and the subject is construction, reconstruction, overhaul of buildings, including residential buildings, as well as commissioning, installation and other related works. There are a few more special points:
- Construction object insurance. It can be carried out by any of the parties, according to the terms of the contract.
- Mandatory technical documentation for the facility and estimates. These documents are part of a construction contract.
- Granting by the customer of the land plot, supply of necessary engineering networks, transportation of goods - within the terms of the contract.
- The contractor is obliged to take all measures to protect nature, improve the territory, and observe environmental safety during the construction process.
A claim under a construction contract, respectively, may be brought not only on general “contractual” grounds, but also in connection with the construction specifics. The range of grounds for filing a claim under this agreement is expanding, since the range of rights and obligations of contractors is wider, and the responsibility for violation of the rules of construction and reconstruction is immeasurably more serious.
Contract Claim: Sample
Director "Organization Name"
FULL NAME.
address
from "Name of organization"
full address
EDRPOU
Bank details
Claim to eliminate the identified deficiencies under the contract No. 1 dated 04/01/2015
Between the “Name of the organization” (the customer) and the “Name of the organization” (the contractor), a contract was concluded for the laying of paving slabs near building N on R Street. The specified contract stipulates that paving slabs are purchased by the contractor independently at the expense of the advance payment of the customer. According to clause 5.1. of the contract, the contractor is responsible for the quality of the acquired paving slabs and is obliged to eliminate the shortcomings of the work performed and replace the unusable material if the shortcomings of the work are identified within six months.
Acceptance of work was formalized by the act of 05/15/15, no visible deficiencies were identified. However, already on 02.06.15, the customer’s defective commission act recorded cracks and chips of paving slabs, as well as its displacement in some places.
Based on the foregoing, I ask, within 1 month from the date of receipt of this claim, to eliminate the identified shortcomings in the materials and replace the damaged paving slabs at their own expense, filling out the elimination of the shortcomings with an acceptance and transfer act.
If these requirements are not satisfied, we will be forced to go to court to recover the damage incurred and all penalties provided for by the contract and the law, with the costs incurred by the contractor. Documents confirming the requirements stated in the claim, you have.
Director "Organization Name"
FULL NAME.
Confidentiality of Information Received
The law establishes a direct ban on the transfer of information received by the parties to the contract to third parties if such information is classified as a trade secret.
Legal advice: it is better to write down the procedure for handling the information received as a separate clause of the contract.
By the way, for violation of the confidentiality regime, the counterparty may also be brought a claim under a contract.
