Topic 5. CONTRACT

5.1. Work agreement

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

The work contract is bilateral, consensual and paid.

Unlike paid agreements on the transfer of property into ownership (other real right) or use, a work contract regulates the legal side of productive activity, accompanied by the creation of a certain materialized result. According to paragraph 1 of Art. 703 of the Civil Code, a work contract is concluded for the manufacture or processing (processing) of a thing or for the performance of other work. Consequently, the interest of the customer in the work contract is to receive a new item manufactured by the contractor as a party to this contract, or to improve the quality and other consumer properties of an existing item.

It is also characteristic of the contract that the result of the work performed must be transferred to the customer. At the same time, under a work contract concluded for the manufacture of a thing, the contractor, along with the transfer of a new thing, also transfers to the customer the rights to this thing (paragraph 2 of article 703 of the Civil Code).

The creation of new individually-defined things or changing their consumer properties in the interests of the customer involves the implementation of contract work on his instructions. The customer has the right at any time to check the progress and quality of work performed by the contractor, without interfering, however, in his activities (paragraph 1 of article 715 of the Civil Code). In turn, according to paragraph 3 of Art. 703 of the Civil Code, the contractor independently determines the methods for fulfilling the customer's task, unless otherwise provided by the contract.

A work contract must also be distinguished from contracts for the provision of services, although the legal norms on a work contract may be subsidiarily applied to certain types of the latter. The main difference between a work contract and contracts for the provision of services is the appearance during its execution of the result, clothed in a materialized form. Such a result is absent in the performance of a contract for the provision of services, which leads to other consequences, both material and intangible in nature (for example, the physical movement of goods during its transportation, improved health as a result of treatment).

The work contract, despite the external similarity, also has significant differences from the employment contract. According to Art. 704, 705 of the Civil Code, the contractor performs the work at his own expense, i.e. from their own materials, on their own strength and means, unless otherwise provided by the contract, and at their own risk. An employee who has concluded an employment contract is enlisted in the staff of the relevant organization, in connection with which he is subject to labor legislation, in particular the norms on the number and conditions of work, its payment and social insurance. At the same time, under the terms of the employment contract, he may be entrusted with the implementation of activities not related to the achievement of a certain materialized result.

The current civil legislation distinguishes several types of work contracts:

▪ household;

▪ construction;

▪ contract for design and survey work;

▪ contract work for government needs.

According to paragraph 2 of Art. 702 of the Civil Code, the general provisions on the contract (§ 1 of Chapter 37 of the Civil Code) apply to such contracts, unless otherwise established by the rules of the Civil Code on these types of contracts.

The parties to the contract are the customer and the contractor. The law does not define the range of entities that can participate in contractual relations both on the part of the contractor and on the part of the customer, in connection with which the general rules on the participation of citizens and legal entities in civil circulation are applied.

As a general rule, if a small amount of technically simple work is to be performed under a work contract, they are performed personally by the contractor. However, when performing a complex set of works, especially in the field of construction contracting, the principle of general contracting is applied. This principle is enshrined in Art. 706 of the Civil Code, according to which, if the obligation of the contractor to perform the work provided for in the contract does not follow from the law or the work contract, the contractor has the right to involve other persons in the performance of his obligations. In this case, the contractor acts as a general contractor, and the law refers to the persons involved in the performance of individual works as subcontractors.

The essence of the principle of general contracting is that the general contractor is liable to the customer for the consequences of non-performance or improper performance of obligations by the subcontractor, since only the customer and the general contractor are bound by obligations under the contract. In turn, the general contractor is liable to the subcontractor for non-fulfillment or improper fulfillment by the customer of obligations under the work contract, since he himself is bound by obligations under the subcontract only with the subcontractor. Thus, here there is a responsibility of the general contractor for the actions of third parties, therefore, the general rules of paragraph 1 of Art. 313, Art. 403 GK.

At the same time, with the consent of the general contractor, the customer may conclude contracts for the performance of certain works with other persons (direct contracts).

The only essential condition of the work contract, as well as most paid civil law contracts, is its subject matter. From the content of Art. 702 of the Civil Code, it follows that the subject of the contract is both the work itself (manufacturing of the thing, its processing or processing, other types of work), and the transfer of its embodied result to the customer. In the absence of a condition on the subject matter in the work contract or if the parties fail to reach an agreement on its subject matter, the contract shall be considered not concluded.

The most important characteristic of the subject of a work contract as a contract for the performance of work is quality. According to Art. 721 of the Civil Code, the quality of the work performed by the contractor must comply with the terms of the work contract, and in the absence or incompleteness of the terms of the contract, with the requirements usually imposed on work of the corresponding kind.

A law, other legal act, work contract or business practices may provide for a guarantee period for the result of work, i.e. the period during which the result of the work must comply with the terms of the contract on quality, provided for in paragraph 1 of Art. 721 GK.

The contract specifies the price of the work to be performed or how it is determined. However, the price is not an essential condition of the work contract, since in the absence of such indications in the work contract, it is determined in accordance with paragraph 3 of Art. 424 GK. The contract price consists of two parts:

1) compensation for costs incurred by the contractor;

2) the remuneration due to him.

If the volume of work is large, and their types are diverse, then the price of the contract is determined by drawing up an estimate.

The price of work (estimate) under the contract may be approximate or firm. Approximate is the estimate, from which deviations (excess) are possible in the course of the work. A firm estimate is called, from which such deviations are not allowed. The law establishes the presumption that the parties agree on a firm estimate, by virtue of which, in the absence of other indications in the contract, the price of the work is considered to be fixed.

One of the important terms of the contract is the term. This contract defines the start and end dates of the work. By agreement between the parties, the contract also provides for the deadlines for completing individual stages of work (interim deadlines). The initial, final and intermediate terms for the performance of work specified in the work contract may be changed in the cases and in the manner prescribed by the contract.

At the same time, the term, like the price, is not an essential condition of the contract. In the absence of an indication in the contract of work for the period of performance of work, the norms of paragraph 2 of Art. 314 GK. In accordance with these rules, an obligation, the term for the performance of which is not provided and cannot be determined, must be performed within a reasonable time after its occurrence. If the obligation is not performed within a reasonable time, then it must be performed within seven days from the date of presentation of the creditor's demand for its performance.

The main obligation of the contractor is to perform certain work on the instructions of the customer and hand over to the latter the result of the work performed (clause 1, article 702 of the Civil Code).

In cases where the work specified in the contract is performed using the customer's material, the contractor is obliged to use the material provided to him economically and prudently (clause 1, article 713 of the Civil Code).

The law defines the consequences of poor-quality work performed by the contractor (Article 723 of the Civil Code).

In accordance with Art. 724 of the Civil Code, the customer has the right to make claims related to the inadequate quality of the result of the work, provided that it is revealed within the time limits provided for in this article, unless otherwise noted by law or the contract. The terms for the customer to submit claims related to the inadequate quality of the work performed depend on the presence or absence of the warranty period and its duration.

In the event that a warranty period is not established for the result of the work, claims related to the shortcomings of the result of the work may be presented by the customer, provided that they were discovered within a reasonable time, but within two years from the date of transfer of the result of the work, unless other terms determined by law, contract or business practices.

If there is a contractual guarantee, the customer has the right to make such claims within the guarantee period established by the contractor. In accordance with paragraph 5 of Art. 724 of the Civil Code, unless otherwise provided by the work contract, the warranty period begins from the moment when the result of the work performed was accepted or should have been accepted by the customer.

If the contractual warranty period is less than two years and defects in the result of the work are discovered by the customer after the expiration of the warranty period, but within two years from the moment when the result of the work performed was accepted or should have been accepted by the customer, the contractor shall bear adverse consequences if the customer proves that that the deficiencies arose before the transfer of the result of the work to the customer or for reasons that arose before that moment.

In Art. 725 of the Civil Code contains special rules on the statute of limitations for claims of inadequate quality of work. The limitation period for claims due to inadequate quality of work performed under a work contract is one year, and in relation to buildings and structures it is determined in accordance with Art. 196 of the Civil Code, i.e. is three years. Thus, for all types of movable and immovable property, except for buildings and structures, the law establishes a reduced limitation period for this type of claims.

The main obligations of the customer, as follows from Art. 702 of the Civil Code, constitute the acceptance of the result of work and its payment.

In accordance with Art. 718 of the Civil Code, the customer is obliged, in cases, to the extent and in the manner prescribed by the work contract, to assist the contractor in the performance of work.

To complete the execution of the contract in terms of the contractor's obligation to hand over the result of the work to the customer and the latter's obligation to accept this result, it is required to follow a procedure called acceptance of the work performed. The procedure for such acceptance is regulated in detail by law (Article 720 of the Civil Code), since it is equally important for both parties to the contract.

The customer is obliged to inspect and accept the work performed (its result) with the participation of the contractor within the time limits and in the manner prescribed by the work contract. Upon discovery of deviations from the contract that worsen the result of the work, or other shortcomings in the work, he must immediately report this to the contractor.

The customer, who discovered shortcomings in the work upon its acceptance, has the right to refer to them only in those cases when these shortcomings were specified in the act or in another document certifying acceptance, or the possibility of subsequent presentation of a demand for their elimination. Unless otherwise provided by the work contract, the customer who accepted the work without verification is deprived of the right to refer to the shortcomings of the work that could be established with the usual method of acceptance (obvious shortcomings).

If, after acceptance of the work, a deviation from the work contract or other deficiencies in it that could not be established with the usual method of acceptance (hidden deficiencies), including those that were deliberately hidden by the contractor, are discovered, the customer is obliged to notify the contractor within a reasonable time by their discovery.

If a dispute arises between the customer and the contractor regarding the shortcomings of the work performed or their causes, an examination must be appointed at the request of either party.

The most important obligation of the customer is to pay for the work performed by the contractor at a price determined in accordance with Art. 709 GK. In this case, 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 results of the work, provided that the work was performed properly and within the agreed time or with the consent of the customer ahead of schedule. The contractor has the right to demand payment of an advance or a deposit to him only in cases and in the amount specified in the law or the work contract (Article 711 of the Civil Code).

According to Art. 712 of the Civil Code, in the event that the customer fails to fulfill the obligation to pay the established price or other amount due to the contractor in connection with the performance of the work contract, the contractor has the right to withhold the result of the work in accordance with Art. 359, 360 of the Civil Code, as well as the equipment belonging to the customer, the thing transferred for processing (processing), the remainder of the unused material and other property of the customer that turned out to be in his possession until the customer pays the appropriate amounts.

5.2. Household contract

In accordance with paragraph 1 of Art. 730 of the Civil Code, under a consumer contract, the contractor carrying out the relevant entrepreneurial activity undertakes to perform, on the instructions of a citizen (customer), certain work designed to satisfy the household or other personal needs of the customer, and the customer undertakes to accept and pay for the work.

Along with the common features inherent in the contract as a whole, the consumer contract has its own specifics. So, the subject composition of this agreement has features. The contractor is always a commercial organization or a citizen-entrepreneur engaged in entrepreneurial activities to perform the relevant type of work. The customer under the considered type of work contract can only be a citizen who needs to satisfy his household or other personal needs. In this regard, the consumer rights protection law and other legal acts adopted in accordance with it (clause 3 of article 730 of the Civil Code) are applied to relations under a consumer contract that are not regulated by the Civil Code.

Since the execution of a domestic contract satisfies the needs of citizens in the performance of work that the subject performing them must carry out in relation to everyone who applies to him (Article 426 of the Civil Code), this agreement, in accordance with paragraph 2 of Art. 730 of the Civil Code is recognized as public.

A household contract may be concluded using a public offer (Article 437 of the Civil Code).

The subject matter of the household contract also differs in specifics. From the definition in Art. 730 of the Civil Code, it follows that the contractor undertakes to perform work intended to satisfy the household or other personal needs of the citizen-customer. Therefore, the result of the work performed must be intended for use not related to entrepreneurial activity.

The specificity of the consumer contract is also manifested in the fixing by law of the pre-contractual obligations of the contractor and other guarantees of the rights of the customer. Pre-contractual obligations according to Art. 732 of the Civil Code (Articles 8 - 10 of the Consumer Rights Protection Law) are that the contractor is obliged to provide the customer with the necessary and reliable information about the proposed work, its types and features, price and form of payment, and also communicate to the customer, at his request, other information relating to the contract and the relevant work. Relevant information should also be communicated to the customer in cases where the type of activity of the contractor is subject to licensing and (or) the contractor has state accreditation. In addition, if this matters due to the nature of the work, the contractor must indicate to the customer a specific person who will perform it.

If the customer is not given the opportunity to immediately obtain the specified information about the work at the place of conclusion of the consumer contract, he has the right to demand compensation from the contractor for losses caused by unreasonable evasion from concluding the contract (clause 4 of article 445 of the Civil Code).

The content of a domestic contract has its own characteristics in comparison with the general rules on a contract. As noted above, the contractor, in accordance with paragraph 1 of Art. 732 of the Civil Code, prior to the conclusion of this agreement, is obliged to inform the customer about the price of the work. Consequently, along with the subject, the price is an essential condition of the consumer contract.

In accordance with the general rules of civil law on the form of transactions, a consumer contract must be concluded in a simple written form (Articles 158 - 162 of the Civil Code). If the contract for the performance of work is executed in the presence of the consumer, it can also be executed by issuing him a cash receipt, ticket, etc. The contract here is considered to be concluded orally. In cases where the customer, in a written consumer contract, joins the terms of the corresponding standard form offered by the contractor, the contract acquires the features of an adhesion contract (Article 428 of the Civil Code).

In accordance with Art. 27 of the Law on the Protection of Consumer Rights, the contractor is obliged to complete the work within the time period established by the rules for the performance of certain types of work or a household contract. If the performance of work is carried out in parts, the contract must establish particular terms (periods) for the performance of work.

At the request of the consumer, the order can be executed urgently. For the urgency of the work, a surcharge will be charged to the price. In this case, the term for the execution of the order is calculated from the moment (hour) of receiving the order specified in the contract.

The work is paid by the customer, as a rule, after its final delivery by the contractor. However, with the consent of the customer, the work can be paid by him at the conclusion of the contract in full or by issuing an advance to the contractor (Article 735 of the Civil Code).

In case of detection of defects during the acceptance of the result of the work or after its acceptance within the warranty period, and if it is not established - a reasonable period, but no later than two years (for real estate - five years) from the date of acceptance of the result of the work, the customer has the right, at his choice to carry out one of the provisions of Art. 723 of the Civil Code of the right to either demand a gratuitous re-performance of the work or reimbursement of the expenses incurred by him to correct deficiencies with his own funds or by third parties (clause 1 of article 737 of the Civil Code).

According to paragraph 2 of Art. 737 of the Civil Code, in the event that significant shortcomings in the result of the work are found, the customer has the right to present the contractor with a demand for the free elimination of such shortcomings if he proves that they appeared before the acceptance of the result of the work by the customer or for reasons that arose before that moment. This requirement may be raised by the customer if the indicated deficiencies are discovered after two years (for real estate - five years) from the date of acceptance of the result of work by the customer, but within the service life established for the result of work or within ten years from the date of acceptance of the result of work by the customer if no expiration date is set. If the contractor fails to fulfill this requirement, the customer has the right, within the same period, to demand either the return of a part of the price paid for the work, or reimbursement of expenses incurred in connection with the elimination of defects by the customer on his own or with the help of third parties, or refuse to execute the contract and demand compensation inflicted losses.

Work deficiencies must be eliminated by the contractor within a reasonable time, appointed by the customer. This period is indicated in the contract or in another document signed by the parties (Article 30 of the Consumer Rights Protection Law). In accordance with paragraph 3 of Art. 723 of the Civil Code and paragraph 1 of Art. 29 of this Law, the customer has the right to refuse to perform the contract and demand full compensation for losses if the contractor does not eliminate the shortcomings of the work performed within the period specified by him.

5.3. building contract

In accordance with paragraph 1 of Art. 740 of the Civil Code, under a construction contract, the contractor undertakes to build a certain facility on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price.

Regulation of this type of contracting relationship is carried out by the norms of § 3 Ch. 37 GK "Construction contract". The general provisions on the contract contained in § 1 of this chapter shall apply, unless otherwise provided by the rules on construction contracts provided for in the Civil Code.

The norms governing relations on a construction contract are contained in many other regulatory legal acts. These include, in particular:

▪ Town Planning Code of the Russian Federation dated December 29.12.2004, 190 No. XNUMX-FZ;

▪ Law of the RSFSR dated June 26.06.1991, 1488 No. 1-XNUMX “On investment activities in the RSFSR”;

▪ Federal Law No. 25.02.1999-FZ dated February 39, XNUMX “On investment activities in the Russian Federation carried out in the form of capital investments”;

▪ Law of the Russian Federation dated November 17.11.1995, 169 No. XNUMX-FZ “On architectural activities in the Russian Federation”;

▪ Federal Law No. 06.05.1999-FZ dated May 97, XNUMX “On competitions for placing orders for the supply of goods, performance of work, and provision of services for government needs.”

In cases where, under a building contract, work is performed to meet the household or other personal needs of a citizen, the rules of § 2 Ch. 37 of the Civil Code "Household contract" (clause 3 of article 740 of the Civil Code).

In addition, when regulating the relations of a construction contract, acts of a recommendatory nature are applied. Such an act, in particular, is the Guidelines for the preparation of construction contracts in the Russian Federation adopted by the Ministry of Construction of Russia on June 10, 1992.

The parties to a construction contract are the customer and the contractor.

Investors who make capital investments in the Russian Federation using their own and (or) borrowed funds in accordance with the legislation of the Russian Federation, as well as individuals and legal entities authorized by investors who implement investment projects (clauses 2, 3) can act as customers article 4 of the Federal Law dated "On investment activities in the Russian Federation, carried out in the form of capital investments").

Contractors may be construction, construction and installation, design and construction and other organizations operating in the field of construction production, as well as individual entrepreneurs. To perform the relevant types of work, they must have a license (clause 4, article 4 of the said Federal Law).

In the implementation of capital construction, the general contracting system is widely used, in which the customer enters into an agreement with one construction organization - the general contractor, which engages specialized organizations as subcontractors to perform individual work packages. General contractors and subcontractors may also be citizens engaged in entrepreneurial activities without forming a legal entity.

With the consent of the contractor, the customer concludes contracts for the performance of certain installation and other special works on this construction object with other contractor installation and other specialized organizations. Such contracts concluded by the customer are commonly referred to as direct contracts.

The subject of a construction contract (subcontract) is the end result of the contractor's (subcontractor's) activity. Under a construction contract, this is a corresponding construction object (enterprise, building, structure) handed over by the contractor to the customer, and under a subcontract - a complete set of certain works (installation, sanitary, etc.), which are part of the work on the construction object as a whole and delivered by the subcontractor to the general contractor.

There are the following types of building contract:

▪ agreements for construction, installation and other work on the facility as a whole;

▪ agreements for the performance of certain sets of installation and other special construction works;

▪ contracts for commissioning works.

Unless otherwise provided by the contract, the rules on a construction contract also apply to major repairs of buildings and structures (clause 2, article 740 of the Civil Code).

The building contract must be concluded in writing. In this case, the form (sample) of the contract can be used, which is an annex to the above-mentioned Guidelines for drawing up construction contracts in the Russian Federation.

The essential terms of a building contract are the terms on the subject matter, price and term of the contract.

When determining the price of the contract, the parties may be guided by the Procedure for determining the cost of construction and free (contractual) prices for construction products in the conditions of the development of market relations (attachment to the letter of the Gosstroy of Russia dated December 29.12.1993, 12 No. 349-XNUMX).

In accordance with par. 1 p. 1 art. 708 of the Civil Code, the term of a construction contract is determined by agreement of the parties by specifying in the contract the initial and final dates for the performance of work. By agreement of the parties, the contract may also establish deadlines for the completion of individual stages of work, if the contract provides for the delivery of the result of the work performed, first by stages, and then as a whole for the construction object.

As a rule, the construction contract provides for the contractor's warranty obligations for the constructed buildings and structures or for the completed work packages.

To conclude a construction contract, it is necessary to obtain certain documents in advance. For the customer, such a document is a construction permit issued by a federal executive body, an executive body of a constituent entity of the Russian Federation or a local government body in accordance with their competence (Article 51 of the Town Planning Code), and for a contractor - a license (permit) to carry out construction activities.

The main obligation of the contractor under a construction contract is to carry out the construction (expansion, reconstruction, technical re-equipment) of the enterprise, building, structure provided for by the contract. An important condition for the execution of the contract is that construction and installation and other work on the facility must be performed in accordance with the technical documentation that determines the scope, content of work and other requirements for them, and the estimate that determines the price of work (design and estimate documentation).

When carrying out construction, the contractor is obliged to comply with construction norms and rules (SNiPs), other technical norms and rules, as well as the requirements of the law and other legal acts on environmental protection and on the safety of construction work (Article 751 of the Civil Code).

The contractor is obliged to provide the construction site with the necessary materials, including parts and structures, as well as equipment, unless the construction contract provides that the construction in general or in a certain part is ensured by the customer (Article 745 of the Civil Code).

The obligation of the contractor is also the erection of a building, structure or other construction object or the performance of other construction works and the delivery to the customer of the result of the work performed under the construction contract within the time period established by the contract.

The law provides for some specific obligations of the customer under a construction contract. Thus, the customer is obliged to provide a land plot for construction in a timely manner. The area and condition of the provided land plot must comply with the conditions contained in the contract, and in the absence of such conditions, ensure the timely start of work, their normal conduct and completion on time.

The customer is obliged, in the cases and in the manner prescribed by the construction contract, to transfer to the contractor for use the buildings and structures necessary for the performance of work, to ensure the transportation of goods to his address, temporary connection of power supply networks, water and steam pipelines, and provide other services.

Payment for the above services is made in the cases and on the terms stipulated by the construction contract (Article 747 of the Civil Code).

The customer is also required to transfer to the contractor documents confirming the permission of the relevant authorities to carry out work in places where underground utilities pass, in the area of ​​overhead power lines and communication lines.

In accordance with Art. 748 of the Civil Code, the customer has the right to exercise control and supervision over the progress and quality of the work performed, compliance with the deadlines for their implementation (schedule), the quality of the materials provided by the contractor, as well as the correct use of the customer's materials by the contractor, without interfering with the operational and economic activities of the contractor.

The customer, who discovered in the course of control and supervision over the performance of work, deviations from the terms of the construction contract, which may worsen the quality of work, or other shortcomings thereof, is obliged to immediately notify the contractor about this. The customer who has not made such a declaration loses the right to refer to the shortcomings discovered by him in the future.

A characteristic feature of a construction contract is the cooperation of the parties (Article 750 of the Civil Code).

In view of the specific and complex nature of the object of the construction contract, the delivery and acceptance of work performed under this contract is especially regulated (Article 753 of the Civil Code). In the cases provided for by law or other legal acts, representatives of state bodies and local self-government bodies must participate in the acceptance of the result of work.

The delivery of the result of work by the contractor and its acceptance by the customer are formalized by an act signed by both parties. If one of the parties refuses to sign the act, a note about this is made in it and the act is signed by the other party. A unilateral act of delivery or acceptance of the result of work may be declared invalid by the court only if the motives for refusing to sign the act are recognized by him as justified. The customer has the right to refuse to accept the result of the work in case of detection of defects that exclude the possibility of its use for the purpose specified in the construction contract and cannot be eliminated by the contractor or customer.

Acceptance of completed construction objects is carried out by the customer or another person authorized by the investor. The customer can involve the user of the object (operating organization), developers of technical documentation, specialized organizations and other legal entities and individuals in the acceptance, creating, if necessary, a selection committee.

In cases where this is provided for by law or a building contract, or follows from the nature of the work performed under the contract, acceptance of the result of the work must be preceded by preliminary tests. Accordingly, acceptance is carried out only with a positive result of such tests (clause 5, article 753 of the Civil Code).

Acceptance of the completed construction object is documented by the act of acceptance.

The Contractor is obliged to timely eliminate the shortcomings and defects identified in the process of acceptance of construction and installation works. The deadline for eliminating these shortcomings is specifically stipulated in the acceptance certificate.

Payment for the work performed by the contractor is made by the customer in the amount provided for by the estimate, on time and in the manner established by law or the building contract. In the absence of relevant instructions in the law or contract, payment for work is made after the final delivery of the result of work (clause 1 of article 711 of the Civil Code). At the same time, the significant cost and duration of capital construction require advance payments for the contractor's activities. However, he has the right to demand the payment of an advance or a deposit only in the cases and in the amount specified in the law or the contract (clause 2 of article 711 of the Civil Code).

The contractor's responsibility for the quality of work has its own specifics. According to Art. 754 of the Civil Code, the contractor is liable to the customer for deviations from the requirements provided for in the technical documentation and in the building codes and regulations binding on the parties, as well as for the failure to achieve the indicators of the construction object specified in the technical documentation, including such as the production capacity of the enterprise.

Unless otherwise provided by the construction contract, the contractor guarantees that the construction object will achieve the indicators specified in the technical documentation and the possibility of operating the object in accordance with the contract during the warranty period. The warranty period established by law may be extended by agreement of the parties (Article 755 of the Civil Code).

Upon presentation of requirements related to inadequate quality of work, the rules of paragraphs 1 - 5 of Art. 724 GK. At the same time, the deadline for detecting deficiencies in accordance with paragraphs 2, 4 of this article is five years (Article 756 of the Civil Code).

If the construction contract provides for the recovery of a penalty (fine, penalty) for its non-performance or improper performance, the losses shall be recovered net of its deduction (set-off penalty). However, the contract may provide otherwise: the recovery of only the penalty, the recovery of losses in the full amount in excess of the penalty, the recovery of either the penalty or damages.

5.4. Contract for the performance of design and survey work

Under a contract for the performance of design and survey work, the contractor (designer, prospector) undertakes, on the instructions of the customer, to develop technical documentation and (or) perform survey work, and the customer undertakes to accept and pay for their result.

Contractual relations for the performance of design and survey work are regulated primarily by special rules contained in § 4 Ch. 37 of the Civil Code "Contract for the implementation of design and survey work." The general provisions on the contract (§ 1 of Chapter 37 of the Civil Code) apply to the specified contract relations, unless otherwise established by the relevant legislative acts.

The parties to the contract for the performance of design and survey work are the customer and the contractor (designer, prospector). They may be the same persons as in the construction contract. However, the contractor under the specified contract may also be the customer in cases where the obligation to develop the relevant technical documentation lies with him, and he does not have the opportunity to perform such work on his own.

Protection of customers from the production of low-quality design and estimate documentation is provided by the licensing institution, which issues permits (licenses) for the performance of special work that requires appropriate certification of the contractor. The list of types of such work is determined by paragraph 4 of Art. 4 of the Federal Law "On investment activity in the Russian Federation, carried out in the form of capital investments".

For the contract for the performance of design and survey work, as well as for the construction contract, the system of general contracting is typical. For the performance of certain types of work, sections or parts of technical documentation, the customer has the right, with the consent of the contractor, to conclude direct contracts.

The subject of the contract for the performance of design and survey work is the production, on the instructions of the customer (general designer), of design estimates (its part, section) required for construction (for design organizations) and the preparation of materials necessary for the correct and economically feasible solution of the main issues of design, construction and operation of enterprises, buildings and structures (for survey organizations).

The price for the technical documentation to be developed is set at the conclusion of the contract. The customer and the contractor (designer, prospector) are involved in its determination, regardless of what form of ownership their activities are based on.

An essential condition of the contract for the performance of design and survey work is also the term of the contract. In the contract, the parties must determine the initial and final dates for the performance of these works. By agreement between them, the deadlines for the completion of individual stages of work may also be provided (clause 1 of article 708 of the Civil Code).

The contract for the performance of design and survey work is concluded in writing.

The obligations of the contractor (designer, surveyor) are defined by Art. 760 GK. The main one is the performance of the work stipulated by the contract within the time period established by it and in accordance with the assignment and other initial data for the design and the contract, as well as in compliance with the mandatory requirements of regulatory and technical documents on design issues, including building codes and rules, norms of technological design, standards and specifications for building materials, parts and structures, etc. The contractor is obliged to transfer the finished technical documentation and the results of survey work to the customer. The transfer of the prepared technical documentation to third parties is allowed only with the consent of the customer (clause 1 of article 760 of the Civil Code).

The main obligation of the customer is to accept the result of design or survey work (relevant technical and other documentation) and pay for it (Article 758 of the Civil Code). In this case, payment to the contractor of the established price can be made in full after the completion of all work or in parts after the completion of individual stages of work.

In accordance with Decree of the Government of the Russian Federation of 05.03.2007 No. 145 "On the procedure for organizing and conducting state examination of project documentation and engineering survey results", prior to the approval of project documentation by the customer, this documentation and the results of engineering surveys performed for its preparation are subject to state examination, with the exception of cases provided for in paragraphs 6 - 8 of the said Resolution. Depending on the type of capital construction projects, such an examination is carried out by a state institution subordinate to the Federal Agency for Construction and Housing and Communal Services, the Ministry of Defense of the Russian Federation, federal executive authorities authorized to conduct this examination by decrees of the President of the Russian Federation, an executive authority of the city of Moscow or subordinate to him by a state institution (before January 1, 2011; in relation to unique objects located on the territory of Moscow), authorized to conduct the same examination by the executive authorities of the constituent entities of the Russian Federation or state institutions subordinate to these bodies.

Acceptance of technical and other documentation prepared in accordance with a contract for design and survey work is documented by an acceptance certificate.

The final payment for the completed technical documentation is made after its acceptance and confirmation by the customer of the compliance of design solutions with the technical and economic indicators established in the design assignment, with a positive conclusion of the examination.

The norms of the Civil Code contain instructions on the responsibility of the contractor under the work contract for the performance of design and survey work. According to Art. 761 of the Civil Code, he is responsible for improper preparation of technical documentation and survey work, including shortcomings subsequently discovered during construction, as well as during the operation of the facility created on the basis of technical documentation and survey work data. If defects are found in the technical documentation or in survey work, the contractor, at the request of the customer, is obliged to redo the technical documentation free of charge and, accordingly, carry out the necessary additional survey work, as well as compensate the customer for the losses caused, unless otherwise provided by law or contract.

5.5. State or municipal contract for the performance of contract work for state or municipal needs

In accordance with paragraph 2 of Art. 763 of the Civil Code under the state or municipal contract for the performance of contract work for state or municipal needs (hereinafter referred to as the state or municipal contract), the contractor undertakes to perform construction, design and other work related to the construction and repair of production and non-production facilities and transfer them to the state or municipal customer , and the state or municipal customer undertakes to accept the work performed and pay for them or ensure their payment.

General provisions on the state or municipal contract are contained in § 5 Ch. 37 of the Civil Code "Contract work for state or municipal needs". At present, in the part not regulated by the Civil Code, the Federal Law "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs" applies to relations for the performance of these works.

The parties to a state or municipal contract are a state or municipal customer and a contractor. State customers can be state bodies, state non-budgetary funds, as well as budgetary institutions, other recipients of federal budget funds and authorized by state authorities of the constituent entities of the Russian Federation to place orders for the performance of contract work for the needs of the constituent entities of the Russian Federation, budgetary institutions, other recipients of budget funds of the constituent entities of the Russian Federation when placing orders for the performance of such works at the expense of budgetary funds and non-budgetary sources of funding. Municipal customers are local governments, as well as budgetary institutions and other recipients of budgetary funds authorized by these bodies to place orders for contract work for municipal needs when placing orders for such work at the expense of budgetary funds and extrabudgetary sources of funding. A legal or natural person can act as a contractor (clause 1 of article 764 of the Civil Code).

As provided for in Art. 765 of the Civil Code, the grounds and procedure for concluding a state or municipal contract for the performance of contract work for state or municipal needs are determined in accordance with the provisions of Art. 527, 528 GK.

A state or municipal contract is concluded on the basis of an order for the performance of work for state or municipal needs, placed in the manner prescribed by law on placing orders for the supply of goods, performance of work, and provision of services for state and municipal needs (clause 1, article 527 of the Civil Code). In all cases, placing an order is carried out by bidding, with the exception of cases provided for by the above Federal Law (Part 2, Article 10 of this Law).

For a state or municipal customer who placed an order, the conclusion of a state or municipal contract is mandatory, unless otherwise provided by law (paragraph 2, clause 1, article 527 of the Civil Code). In the event that a state or municipal contract is concluded based on the results of an auction for placing an order for the performance of work for state or municipal needs, the state or municipal contract must be concluded no later than 20 days from the date of the auction (clause 4 of article 528 of the Civil Code).

The following conditions of the state or municipal contract are essential:

▪ about the volume and cost of the work to be performed;

▪ about its start and end dates;

▪ about the amount and procedure for financing and payment for work;

▪ about ways to ensure the fulfillment of obligations (clause 1 of Article 766 of the Civil Code).

Author: Ivakin V.N.

<< Back: Residential tenancy agreement and other housing obligations (Residential rental agreement. Residential exchange agreement)

>> Forward: Contracts for research, development and technological work (research and development work)

We recommend interesting articles Section Lecture notes, cheat sheets:

▪ General surgery. Lecture notes

▪ Accounting. Crib

▪ Real estate economics. Crib

See other articles Section Lecture notes, cheat sheets.

Read and write useful comments on this article.

<< Back

Latest news of science and technology, new electronics:

The existence of an entropy rule for quantum entanglement has been proven 09.05.2024

Quantum mechanics continues to amaze us with its mysterious phenomena and unexpected discoveries. Recently, Bartosz Regula from the RIKEN Center for Quantum Computing and Ludovico Lamy from the University of Amsterdam presented a new discovery that concerns quantum entanglement and its relation to entropy. Quantum entanglement plays an important role in modern quantum information science and technology. However, the complexity of its structure makes understanding and managing it challenging. Regulus and Lamy's discovery shows that quantum entanglement follows an entropy rule similar to that for classical systems. This discovery opens new perspectives in the field of quantum information science and technology, deepening our understanding of quantum entanglement and its connection to thermodynamics. The results of the study indicate the possibility of reversibility of entanglement transformations, which could greatly simplify their use in various quantum technologies. Opening a new rule ... >>

Mini air conditioner Sony Reon Pocket 5 09.05.2024

Summer is a time for relaxation and travel, but often the heat can turn this time into an unbearable torment. Meet a new product from Sony - the Reon Pocket 5 mini-air conditioner, which promises to make summer more comfortable for its users. Sony has introduced a unique device - the Reon Pocket 5 mini-conditioner, which provides body cooling on hot days. With it, users can enjoy coolness anytime, anywhere by simply wearing it around their neck. This mini air conditioner is equipped with automatic adjustment of operating modes, as well as temperature and humidity sensors. Thanks to innovative technologies, Reon Pocket 5 adjusts its operation depending on the user's activity and environmental conditions. Users can easily adjust the temperature using a dedicated mobile app connected via Bluetooth. Additionally, specially designed T-shirts and shorts are available for convenience, to which a mini air conditioner can be attached. The device can oh ... >>

Energy from space for Starship 08.05.2024

Producing solar energy in space is becoming more feasible with the advent of new technologies and the development of space programs. The head of the startup Virtus Solis shared his vision of using SpaceX's Starship to create orbital power plants capable of powering the Earth. Startup Virtus Solis has unveiled an ambitious project to create orbital power plants using SpaceX's Starship. This idea could significantly change the field of solar energy production, making it more accessible and cheaper. The core of the startup's plan is to reduce the cost of launching satellites into space using Starship. This technological breakthrough is expected to make solar energy production in space more competitive with traditional energy sources. Virtual Solis plans to build large photovoltaic panels in orbit, using Starship to deliver the necessary equipment. However, one of the key challenges ... >>

Random news from the Archive Underwater quantum communication channel 29.08.2017 Experiments to create secure quantum communication channels have already been carried out more than once on Earth and in space. And recently, a group of Chinese researchers created the first of its kind "underwater" quantum communication channel that does not require any optical cables, using laser light and the phenomenon of quantum entanglement. The experiments carried out by Chinese researchers are just the first "pen test" for underwater quantum communications technologies. And the further development of this direction will make it possible to transmit encrypted messages to submarines in a completely secure way or to exchange data between two communication points separated from each other by vast expanses of water. To create a communication channel, the researchers used laser light passed through a complex optical system consisting of crystals, optical filters and mirrors. At the first stage, the optical system singled out only photons with a strictly defined polarization from the laser light. Then the beam of light was split into two beams, which contained photons entangled at the quantum level. One of the beams was directed into a ring resonator, and the second was directed through a transparent tube, 3 meters long, which was filled with ordinary sea water. This whole system worked and scientists found that the state of quantum entanglement persists after photons "journey" through sea water. "The data we have obtained allow us to hope that the exact same method will work at large distances, which we are going to test in the very near future," the researchers write. However, some of the outside scientists are not very sure about the positive result of experiments with underwater quantum communications over long distances. "Salty seawater absorbs and scatters light intensely. Therefore, the implementation of optical quantum communications under water will be fraught with a number of difficulties, some of which may not be solved today," writes Jeffrey Uhlmann, a scientist from the University of Missouri who specializes in this direction, - "Nevertheless, all research in the field of underwater optical communications is important, and sometime in the future, one of the scientists will still be able to find a way to make all this a reality."

Other interesting news:

▪ robot citizen

▪ Samsung WB2200 60x optical zoom camera

▪ Map made by cod

▪ First successful robotic liver transplant

▪ magnetic painting

News feed of science and technology, new electronics

Interesting materials of the Free Technical Library:

▪ site section Electric meters. Article selection

▪ Belena's article ate too much. Popular expression

▪ article How do we swallow food? Detailed answer

▪ article Driver of a mobile compressor station. Standard instruction on labor protection

▪ article Measure of emotions. Encyclopedia of radio electronics and electrical engineering

▪ article Stuffing wireless microphones FM range. Encyclopedia of radio electronics and electrical engineering

Leave your comment on this article:

All languages ​​of this page

Arabic	Hebrew	Polish
Bengali	Hindi	Portuguese
Chinese	Italian	Spanish
English	Japanese	Turkish
French	Korean	Ukrainian
German	Malay	Vietnamese

Home page | Library | Articles | Website map | Site Reviews

www.diagram.com.ua
2000-2024