Guarantee for various services and legal methods of bringing to responsibility

Often its owners have high hopes for a new item. And imagine their disappointment when the thing they just purchased stops working.

The Law “On the Protection of Consumer Rights” stands guard over the protection of our rights, which can easily be violated by anyone.

According to paragraph 1 of Art. 18 of this Law, each buyer has the right to exercise his rights to free service during the warranty period.

We have rights, but is it always possible to use them, because cases of refusal to repair under warranty are quite common. What should the buyer do if he refuses to fulfill his legal requirements?

Sometimes we ourselves are clearly the cause of malfunctions. Understanding this fact, you can draw up an act of refusal of warranty repairs yourself. This is much better than wasting time only to end up getting rejected anyway.

Guarantee road: what does it mean?

Road restoration, as well as any other service, is covered by a warranty. That is, an enterprise that carries out repair work bears warranty obligations in accordance with the work performed, and must eliminate defects in the road surface that formed during the period of validity of the obligation, at its own expense.

After road repair work, a warranty passport is certainly issued, which reflects the characteristic features of the object, terms and forecast indicators of the condition, according to the years of validity of the duties.

What the law says

The warranty period is most often negotiated in the contract agreement. But there are also mistakes in its composition. Provided that the warranty period for the builders’ work was not discussed in advance, this does not mean that it does not exist at all. Several articles of the Civil Code address this topic. The period of five years is established by Article No. 756, but the terms of the agreement will be of paramount importance. Further, article No. 724 talks about the time frame within which it is necessary to find the flaws of unscrupulous contractors:

if a guarantee was not discussed, claims based on the results of the work can be made, provided that defects are discovered in the first twenty-four months after the delivery of the object by the customer;
the guarantee comes into force after the customer has accepted the finished object or should have accepted it;
If the contract specifies a warranty period and it is less than two years, the customer can file a claim with the developer after the warranty for the work performed has expired. But he will have to prove that the shortcomings were discovered after the operation of the building, but they arose before the object was commissioned.

The main idea from these articles is the following: if a defect in the contractor’s work was discovered during the warranty and at the same time proved that it was his fault for causing the damage, he will have to correct everything at his own expense. The customer can also submit his claims for compensation for physical, property and/or moral damage.

The construction organization has the right to refuse to fulfill the customer’s requirements. But at the same time he will have to objectively justify his non-involvement. Very often, such disagreements can only be resolved in court with the involvement of an independent construction expert as an expert. You can see how independent examination works in the article on our website. Or consult the duty consultant of the Internet portal “PravPotrebitel”.

Normative base

The law says that warranty periods must be specified in contracts concluded between the parties. The time frame for the validity of such guarantees is specifically stated in Articles 724 and 756 of the Civil Code of the Russian Federation.

This is also important to know:
What is post-warranty service and its validity period

Article 724 deals with the customer's rights to make claims if he discovers serious defects within a standard period of time. It also describes at what point the warranty period begins.

According to Article 756, any customer can count on a minimum warranty period of 24 months. During this time after completion of the project, the contractors can legally make claims.

The main regulatory act here becomes the Civil Code. In particular, articles 722 and 755. In addition, provisions of the law dedicated to the protection of consumer rights are often used.

Important
This law allows you to resolve issues related to the reception and presentation of claims. Cases where the customer is an ordinary citizen and the work is performed specifically for his personal needs are examined separately.

Categories

A bank guarantee is an effective and reliable means of minimizing risks in the execution of contracts between counterparties, and therefore it is necessary to pay special attention to the issues of drawing up agreements on the provision of bank guarantees.

When contracts are concluded between two legal entities, there is a possibility that the customer's requirements will not be met properly. One of the ways to ensure proper execution of a contract by the contractor is to provide the customer with security for the fulfillment of his obligations under the contract.

The essence of such security is to provide one of the parties to the contract (customer) with a guarantee that his order will be completed in full compliance with the terms of the contract, including compliance with the agreed deadlines. Thus, collateral under the contract allows us to minimize the customer’s risks. Basically, interim measures are taken when concluding government contracts or contracts with large corporations.

Security can be expressed in monetary form (depositing a certain amount of money on the customer’s deposit, which is stored there until the contractor fully fulfills the terms of the contract) or in non-monetary form (for example, a surety or guarantee).

Currently, when concluding government contracts, non-monetary forms of security measures such as insurance or surety are no longer used. Accordingly, there is only one option left - a bank guarantee (or depositing funds).

A bank guarantee is one of the most popular types of interim measures. The meaning of a bank guarantee for the fulfillment of obligations under a contract is that the bank, at the request of the executor under the contract (principal), provides the customer under the contract (beneficiary) with a document confirming the bank’s obligation to pay the beneficiary a certain amount of money in the event of failure by the executor to fulfill its obligations.

Using a bank guarantee has a number of advantages for each party:

For the customer under the contract, a bank guarantee is a security measure for the proper execution of the order, which thereby leads to the minimization of its risks;
For the contract , the provision of a bank guarantee allows access to the vast market of government orders and large corporations. Using a bank guarantee instead of depositing funds on the customer’s deposit allows the contractor not to divert funds from business circulation, but to use them in current activities or place them on a fixed-term bank deposit (as a rule, the profit from involving funds in the enterprise’s turnover (rate of return) , and the rate on bank deposits exceeds the amount of the commission paid to the bank for providing them with a guarantee);
for the bank providing the guarantee , the advantage is to receive additional non-interest income.

There are several types of bank guarantees :

tender - a guarantee that the bank that issued the guarantee undertakes to pay the auction organizer (beneficiary) the guarantee amount in the event that the bidder (principal) who won the tender refuses to conclude the contract;
proper fulfillment of obligations under the contract - a guarantee that the bank that issued the guarantee undertakes to pay the guarantee amount to the customer (beneficiary) in the event that the executor (principal) does not fulfill the obligations under this contract at the proper level;
return of advance payment - a guarantee that the bank that issued the guarantee undertakes to pay the guarantee amount to the customer (beneficiary), which he previously paid to the executor (principal) as an advance, in the event that the principal does not fulfill or improperly fulfills his obligations and the contract is terminated;
customs - a type of bank guarantee that is used during the regime of temporary import of property into the territory of another state (for example, for participation in an exhibition);
judicial - one of the methods of securing a claim, used at the request of the defendant as an alternative to seizure of property.

The provision of bank guarantees is regulated by the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

Article 368 of the Civil Code of the Russian Federation describes the concept of a bank guarantee : “By virtue of a bank guarantee, a bank, other credit institution or insurance organization (guarantor) gives, at the request of another person (principal), a written obligation to pay the principal’s creditor (beneficiary) in accordance with the terms of the obligation given by the guarantor a monetary amount upon submission by the beneficiary of a written request for its payment.”

Thus, the bank that issued the guarantee is liable for the debts of the principal in the event of his failure to fulfill his obligations under the agreement to the beneficiary.

As a rule, a bank guarantee is in written form and is a document signed by the guarantor bank.

Let's consider an example of a visual text of a bank guarantee issued for the purpose of proper fulfillment of obligations under a contract.

EXAMPLE

The branch of OJSC “Bank “Capital Plus””, hereinafter referred to as the Guarantor, represented by the director of the branch Ivanov I.I., acting on the basis of Power of Attorney No. 12345, hereby informs that it is aware that LLC “Lesorub”, hereinafter referred to as the Principal , was recognized as the winner of an open auction in electronic form for the right to conclude a contract for clearing the territory from forest vegetation on the construction site of the Krasnokamensk-Zelenogorsk highway, conducted by Dorozhnik LLC, hereinafter referred to as the Beneficiary, based on the results of which a contract is concluded between the Principal and the Beneficiary (hereinafter referred to as the Contract) .

The Guarantor, in the manner prescribed by this Guarantee, ensures the proper fulfillment by the Principal of its obligations to the Beneficiary under the Contract.

This Guarantee and the Guarantor’s obligations under it come into force from the moment of its issuance.

The Guarantor hereby undertakes to pay the Beneficiary funds in an amount not exceeding 350,000 (three hundred fifty thousand) rubles , within 5 (five) business days from the date of receipt of the Beneficiary’s written request containing:

an allegation that the Principal has breached its obligations under the Contract;
description of the obligations in respect of which the Principal committed violations.

The following documents must be attached to the written request of the Beneficiary:

a duly certified copy of the Contract with all amendments and additions;
the Beneficiary's claim to the Principal regarding non-fulfillment or improper fulfillment by the Principal of its obligations under the Contract with a requirement for their proper fulfillment within a certain period of time, with documents confirming receipt of the claim by the Principal;
copies of documents confirming the powers of the persons who signed the written request of the Beneficiary.

The Beneficiary's written request for payment under this Guarantee must be presented to the Guarantor during the validity period of the Guarantee at the address: Sinerechensk, st. Druzhby, 15 by registered mail.

The Guarantor's liability to the Beneficiary is limited to payment of the amount for which the Guarantee was issued and is reduced by each amount paid by the Guarantor to the Beneficiary under the Guarantee during the term of the Guarantee.

The right of claim under this Guarantee cannot be fully or partially assigned by the Beneficiary to third parties.

Under this Guarantee, the applicable substantive and procedural law is the law of the Russian Federation.

The guarantee is issued until December 31, 2014 . The term of the Guarantee may be reduced if, during its validity period, the Beneficiary receives a written request for payment of funds under the conditions specified in this Guarantee.

The guarantee is issued in a single copy.

Thus, the text of the bank guarantee contains the name of the principal, the beneficiary, an indication of the contract concluded between them, the amount of the guarantee obligation, its validity period, as well as the procedure for paying the claim under the guarantee to the beneficiary.

The issuance of a bank guarantee occurs on the basis of an agreement on the provision of a bank guarantee concluded between the guarantor bank and the principal.

Let us consider the features that should be taken into account when concluding this agreement. First of all, the agreement on the provision of a bank guarantee must contain the main provisions of the bank guarantee:

type of bank guarantee (guarantee of return of advance payment, guarantee of proper fulfillment of obligations under the contract, etc.);
name and details of the beneficiary;
details of the contract for the fulfillment of obligations under which a guarantee is issued;
bank guarantee format (written, electronic);
form of bank guarantee (standard bank form or form proposed by the beneficiary);
the amount of the bank guarantee;
currency of the bank guarantee;
date of entry into force of the guarantee;
validity period of the bank guarantee.

Next, you should pay attention to the details characterizing the relationship between the guarantor bank and the principal.

The guarantee is provided by the bank on a paid basis (clause 2 of Article 369 of the Civil Code of the Russian Federation: “For issuing a bank guarantee, the principal pays a fee to the guarantor”).

Basically, the amount of remuneration for issuing a bank guarantee is set as a percentage of the guarantee amount (this can be simply a percentage of the guarantee amount or a percentage per annum rate, which depends on the period for which the guarantee is issued), but can also be set as a fixed amount. The parties independently decide when this remuneration will be paid: at a time, according to a schedule, before the guarantee is issued, or before a certain date.

A guarantee is often issued by a bank against appropriate security (for example, a pledge of real estate or goods in circulation, a guarantee of the founders).

For certain categories of bank clients, various preferences may be provided in terms of issuing collateral. For example, for clients who have a positive credit history and good financial standing, a guarantee may be issued without collateral. In such cases, the bank may charge an additional commission to the principal.

Therefore, the agreement on the provision of a bank guarantee must provide for the following points :

the amount of remuneration for issuing a bank guarantee;
the procedure for paying this remuneration;
additional commissions paid by the principal for providing him with a bank guarantee;
the type and value of the collateral issued as security under the guarantee;
the possibility of granting a deferment when registering security (for example, if a pledge of real estate is accepted as security and the pledge agreement must be registered with government agencies);
the need for collateral insurance.

Bank guarantees are divided into conditional and unconditional (on demand).

A conditional guarantee means that the guarantor undertakes to make a payment to the beneficiary only upon presentation by him of certain documents, for example, payment orders confirming the transfer by the beneficiary to the principal of funds as an advance payment under the contract. With an unconditional guarantee, payment is made only if there is a written request from the beneficiary.

In our country, a conditional guarantee is most often used, which is reflected in paragraph 1 of Art. 374 of the Civil Code of the Russian Federation: “The beneficiary’s request for payment of a sum of money under a bank guarantee must be submitted to the guarantor in writing with the documents specified in the guarantee attached. In the request or in an appendix to it, the beneficiary must indicate what the principal’s violation of the main obligation to secure which the guarantee was issued consists of.”

In fact, even if the guarantee does not specify the documents that the beneficiary is required to provide when sending a claim to the guarantor, he must still indicate what the principal’s violation of his obligations was.

In order to avoid controversial situations, the text of the bank guarantee must establish a clear list of documents that the beneficiary is obliged to present to the guarantor when submitting a claim.

If an unconditional bank guarantee is issued, the text of the agreement on the provision of a bank guarantee between the bank and the principal must include an indication that the principal agrees with the unconditional form of the guarantee and undertakes to unconditionally reimburse the guarantor for the amount of the payment made within the period established in the agreement from the moment of receipt of the bank's demand .

If the list of documents that the beneficiary is obliged to present to the guarantor when submitting a claim does not contain documents confirming the powers of the persons who signed this claim, this carries the risk of invalidating it, and therefore will lead to further disputes between the bank and the principal. Therefore, in the absence of these documents in the list of documents attached by the beneficiary to the request for payment under the guarantee, it is advisable to include in the text of the contract a clause stating that the principal does not object to the absence in the list of documents attached by the beneficiary to the request for payment under the guarantee, and documents confirming powers of the persons who signed the specified requirement .

If the guarantor satisfies the beneficiary's claim, the right of claim against the principal for the claims fulfilled under the guarantee is transferred to the guarantor. This is called the recourse claims of the guarantor to the principal and is described in paragraph 1 of Art. 379 of the Civil Code of the Russian Federation: “ The right of the guarantor to demand from the principal, by way of recourse, compensation for amounts paid to the beneficiary under a bank guarantee, is determined by the agreement of the guarantor with the principal, in pursuance of which the guarantee was issued.”

What warranty obligations does the contract contain?

In the case of a construction contract, the main procedures are aimed at construction or repair work, and, as a result, the obligations become:

Guaranteed retention of part of the customer's funds.
Compensation for damages in case of inadequate quality of work.
Carrying out procedures again if repairs cannot be carried out and the quality does not meet the requirements of the law and the contract.
Warranty repairs (subject to the statutory warranty period for construction work).

Overperformance of work and compensation for losses

If serious defects are identified, the client has the right to both terminate the agreement with full compensation of the funds spent, and to demand that the work be re-performed in satisfactory quality.

This type of guarantee is most often resorted to in cases where the procedures were performed improperly due to the fault of the contractor, but not due to non-compliance with the stated requirements.

For example, if the management and employees of a construction company fulfilled their obligations according to the contract, and one of the managers cheated and his actions led to the occurrence of defects.

Warranty and return

The security deposit (guarantee retention) under a contract is the amount that the client retains in his account (they cannot be spent anywhere other than paying for the contract) until the result of the production is accepted. Such a guarantee for various services is necessary so that the consumer, if significant shortcomings are identified in the work of the contractor, can use these funds to eliminate the problems that have arisen.

The amount withheld by the customer is transferred to the contractor if:

All conditions were met on time, and the production result passed quality control.
The warranty period for repair work has expired.
After termination of the obligation at the initiative of the client without significant reasons (by a court decision and in the presence of such a clause in the agreement).

Repair

Warranty repairs are a special way of guaranteeing an obligation, which is used after the work has been completed and the object has been handed over. This type of protection of customer rights was introduced due to the fact that not all defects can be detected through an initial examination.

Cases of mandatory provision of guarantee measures

The supplier must provide warranty coverage if the customer has specified this requirement in the documentation. Despite the fact that from July 1, 2020, the establishment of this requirement is a right and not an obligation for the customer (Part 2.2, Article 96 of 44-FZ), the supplier is obliged to fulfill it if the customer has used his right.

If the customer has established this requirement, then it applies to all applicants for the contract without exception (including representatives of SMP and SONKO).

demand warranty obligations only when the contract specifies warranty obligations , including requirements for the warranty period for the purchased products (works, services).

According to Part 4 of Art. 33 44-FZ, the customer is obliged to require warranty measures if machinery and equipment are purchased. In other cases, establishing this requirement is just a right.

There is no list of purchases for which the customer “has the right” to demand warranty measures. For example, when purchasing cabinets or construction services, the customer will most likely write down warranty requirements. But he may not do this, it all depends on his preferences.

In government procurement practice, there are cases when customers set a requirement for quality assurance and do not themselves understand why they are doing this. Such situations are typical when purchasing food products, medicines, and software. The bad thing is that, without understanding it, customers simultaneously demand to provide security for guarantee obligations in such purchases. Confusion arises due to the fact that customers do not distinguish between the terms “warranty” and “remaining shelf life”. The downside is that the presentation of requirements for guarantees and for ensuring guarantee obligations in the named cases does not formally violate 44-FZ.

In what order should the developer fulfill warranty obligations?

In the case of construction and repair warranties, the procedures are somewhat different. If it concerns the process of creating and transferring an object directly:

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The customer must conduct an audit of the object he accepts. If deficiencies are detected, the corresponding act is transferred to the contractor.
The contractor analyzes the received report and, if necessary, can conduct its own examination.
If the performer agrees that he made a mistake, he must either eliminate the deficiencies at his own expense or at the expense of the customer (if problems with the object arose due to reasons not related to the work of the performer).
If the contractor does not agree with the customer’s comments, then he can be forced to fulfill his warranty obligations in court.

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In the case of warranty repairs, the procedure will look like this:

If the warranty period has not yet expired, and the client has discovered defects, or they arose during operation, then the contractor is sent a request to carry out the required repairs. Here you can learn more about how to calculate penalties under a contract.
The contractor can either immediately accept the customer’s terms and fulfill warranty obligations, or conduct an examination to understand what caused the defects. If the cause is improper operation, then repairs will not be carried out. Also, normal wear and tear is not covered under warranty repairs.
If the contractor claims that the cause of the defects is not related to his activities, the client can seek help from the judicial authorities to conduct an independent examination.

Warranty repairs can be carried out by the contractor or third parties engaged by him. In this case, third parties will be responsible for quality not to the end client under the primary contract, but to the contractor.

Description of general warranty obligations under the Civil Code of the Russian Federation

Warranty obligations under the Civil Code of the Russian Federation can be legal and contractual (Article 470 of the Civil Code of the Russian Federation). By indicating the warranty period, the contractor vouches for the quality of the transferred goods throughout the entire warranty period and assumes obligations to eliminate defects identified before the end of the warranty period.

Types of Warranties

By purchasing, the consumer receives along with the product a warranty from the manufacturer, who confirms with this obligation:

the product has the required conditions when purchased;
during the period of time defined as the warranty period, will be able to function uninterruptedly.

Article 470 establishes two types of warranty obligations in relation to goods: the so-called legal and contractual (clauses 1-2 of Article 470 of the Civil Code of the Russian Federation).

A legal warranty is a statement by the seller that, at the time of delivery, the product is free from defects that affect its value or ability to perform under the conditions for which it was purchased. The product will function properly within a reasonable time.
An additional or contractual guarantee (clause 3 of Article 470 of the Civil Code of the Russian Federation) is the responsibility of the seller, a guarantee that the product will properly perform its functions during the warranty period. The contractual warranty applies, unless otherwise agreed, to all components and components.

The concept of a warranty period

The user can receive free elimination of defects if they occur during the warranty period. It is the manufacturer of the goods, not the trade workers, who is charged with correcting the defect. The warranty period starts from the date of purchase (Article 19 of the Labor Code).

If the date of sale is not fixed, the warranty period is counted from the date of manufacture indicated in the technical passport or similar document from the manufacturer.
If the product is seasonal, the warranty period is counted not from the date of sale, but from the date of the period for which the item was purchased.
If the product is purchased online, the warranty period starts from the delivery date.
If the manufacturer has not established a warranty period, it is assigned by the seller.

Buyer's rights during the warranty period

note

If the warranty repair period is not specified, the breakdown must be repaired immediately or as soon as possible. The maximum repair period for a warranty product is 45 days. However, it is worth considering that the time frame for free troubleshooting varies for different products.

The buyer has the right to receive the cost of the product, free guaranteed repair, replacement with the same or similar model of the product, and a proportionate reduction in price.

The obligation to answer for warranty obligations rests with the seller, manufacturer or importing company that imports products into the country.

The rights and obligations of suppliers of goods covered by warranty service are enshrined in Art. 5 ZPP.

Warranty obligations apply to goods purchased in the Russian Federation.

Warranty period after repair

If a product under warranty breaks down, the date of delivery for repair and return receipt is recorded.

The time that the buyer did not use the product due to its being under repair is deducted from the warranty period.

For example, if the warranty period is 12 months, six months after purchase the product breaks down and ends up in a service workshop, where it stays for 2 months, then, upon completion of the repair, the warranty period is extended for the duration of the repair.

As for durable goods (their list is established by the Government of the Russian Federation), the seller, at the consumer’s request, provides a similar product for free use during repairs. Delivery is made within three days at the expense of the seller.

The customer of the service has the right to make demands to eliminate violations if they turn out to be covered by warranty. In the absence of a guarantee - for 2 years.

Responsibility when performing work and providing services

The law provides for manufacturer liability for unsuitable quality. Warranty obligations under a contract are established by Chapter 37 of the Civil Code of the Russian Federation. There are different types of contracts:

Did you know

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household and construction;
to carry out design and survey work;
according to government orders.

The quality of the contractor’s work must meet the terms of the contract (Article 721 of the Civil Code of the Russian Federation) or the requirements usually imposed on work of this type. The guarantee period is counted from the date of execution (Article 457 of the Civil Code of the Russian Federation) and is established by the contract. The deadline for detecting work deficiencies is two years.

The warranty period is interrupted while the defect is eliminated (clause 3 of Article 755 of the Civil Code of the Russian Federation).

The consumer is obliged to report any defects or malfunctions identified during the warranty period within a reasonable time after their discovery (Clause 4 of Article 755 of the Civil Code of the Russian Federation). If, according to the contract, the warranty period is less than 2 years and defects are found after the end of the warranty period, but within 2 years, the customer must prove that the defects occurred through no fault of his own.

For construction contracts, the deadline for detecting defects is 5 years.

The procedure for the provision of communication services, medicine, veterinary medicine, audit, training, information, and tourist services is enshrined in Art. 779-783 Civil Code of the Russian Federation.

The service is provided in person, unless otherwise agreed by agreement of the parties.

Warranty obligations under a service contract are regulated by the general provisions of articles on household contracts (Articles 702-729, 730-739 of the Civil Code of the Russian Federation). The provisions of the law apply to contracts for the provision of services, unless this contradicts Articles 779-782 of the Code, as well as the specifics of the subject of the contract for the provision of paid services.

Warranty obligations under a supply agreement mean that the supplier guarantees the quality of the product and warranty service for 12 months from the date of sale of the product to the end consumer and 24 months from the date of manufacture of the product, in case of detection of defects before its sale.

The warranty obligation applies to work that does not have a specified warranty period. In this case, the consumer will have to prove that the defect appeared before the work was accepted or for reasons that occurred before the work was performed.

Example of breach of warranty

The buyer contacted the car dealership with a breakdown of the heating system in a car that was under warranty. The seller made repairs, but after some time this particular part broke again.

The fan motor was replaced, the seller declared this type of repair out of warranty and demanded payment for the cost of the work.

At the same time, in the service book this type of breakdown is not listed as non-warranty.

What the seller is wrong about:

Only the following cases are considered non-warranty:
1. the breakdown was caused by the buyer;
due to force majeure circumstances (hurricane, flood, etc.).

This rule is enshrined in paragraph 6 of Art. 18 ZPPP. No other cases can be considered non-warranty.

If the warranty period has not expired, the seller has the right to refuse repairs only if he can prove the presence of one of the above factors, the occurrence of which deprives the car owner of the right to free repairs.

As a rule, proof is made through an examination.

Therefore, in this situation, the buyer must make a written claim in which he demands to provide evidence that the breakdown of the blower system is a non-warranty event. According to Art. 28 of the Law of the Russian Federation, proof rests with the seller.

If the store refuses to return the car from warranty repairs, the claim indicates a violation of the terms of warranty repairs (Article 20 of the Labor Code).

For violation of the deadline, the seller is obliged to pay a penalty (fine). A calculator for calculating penalties for failure by the seller to fulfill his obligations can be found here.

The seller is given from 7 to 20 days to consider the claim, depending on whether a quality check will be assigned.

If after this period the request is refused or there is no response, you should go to court. The statement of claim is accompanied by the seller’s response, if given, copies of the registration certificate, payment receipts, and other documents for the car.

The plaintiff is exempt from paying the state fee.

Source: https://potrebexpert.online/6030-garantiinue-obyazatelstva-v-dogovore-okazaniya-uslug

Duration of the warranty and what it covers

When the contractor carries out warranty work, obligations to eliminate defects, the time for completing the work from the moment they are identified should not exceed 3 months and can be increased under certain weather and climatic circumstances.

If specific weather conditions are needed to eliminate defects in the technological processes of work, the period for eliminating defects is calculated from the moment the conditions occur. If a warranty case occurs, the terms are extended for a time equivalent to the stage of operation of the unacceptable condition.

Fact
If defects appear, according to agreements for the provision of road safety, their prevention must be implemented within the time limits specified by GOST R 50597.

Warranty periods for different cases:

For the subgrade and layers of road pavement during construction, reconstruction and major repairs, the guarantee is given for 8 and 6 years.
For the edge of the road or its elements reinforced with material, according to the type of roadway, it is taken equal to the period of covering the track pavement. In other options, the warranty period for the edge of the road or its elements is not regulated in any way.
The warranty period for cement concrete pavement is given for no less than 8 years.
The warranty period for the top row of pavement and wear layers of asphalt concrete during construction, reconstruction and major repairs is approved depending on the saturation of machine movement. The shortest warranty period for the lower layer of the coating is at least 5 years.
When repairing road surfaces with layers of asphalt concrete, it is recommended to provide a warranty period equivalent to 4 years.
When the traffic flow is saturated (movement of more than 15,000 vehicles per day), it is recommended to allow 2 years.

Where is information about the warranty period found?

Information about the warranty period must be contained in the product information.

Typically, information about the warranty period can be found:

in the purchase and sale agreement;
in the warranty card;
on the check (receipt).

In addition, sources of information about the warranty period may be:

website of the seller or manufacturer;
technical documentation for asphalt;
label;
marking.

If the start of the warranty period is not established

The warranty period begins to run from the moment when the result of the work performed was accepted or should have been accepted by the customer (clause 5 of Article 724 of the Civil Code of the Russian Federation).

The absence of an acceptance certificate for completed work does not relieve the contractor from liability for their improper performance, but establishes a different procedure for calculating the warranty period (Resolution of the Federal Antimonopoly Service of the Moscow District dated September 22, 2008 N KG-A40/8390-08). For example, this period can be calculated from the moment of actual transfer of the result.

This moment can be determined based on the moment of full payment for the work, if, according to the terms of the contract, the final payment is made after the completion of the work.

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In the event of untimely acceptance by the customer of the work result, the warranty period begins from the acceptance date specified in the contract, i.e. before the customer begins to use the result of the work.

Beginning of the warranty period

The parties must determine in the contract the moment from which the warranty period begins to run (clause 5 of Article 724 of the Civil Code of the Russian Federation). It could be:

the moment of acceptance of the work result by the customer;
the moment when the result of the work must be accepted by the customer in accordance with the terms of the contract;
the expiration of a period of time from the moment of acceptance of the work result by the customer;
the moment of transfer of the work result (products, items) to the end consumer who uses it for its intended purpose (upon further sale of the work result by the customer);
the moment of putting the work result (for example, equipment) into operation, etc.

The optimal start for the parties for the warranty period can be considered the moment when the result of the work performed is accepted or should be accepted by the customer, as defined in clause 5 of Art. 724 Civil Code of the Russian Federation.

Example
An example of the wording of a condition: “The warranty period is calculated from the moment the customer accepts the result of the work.”

It must be remembered that, regardless of the agreement of the parties, the warranty period will not begin to run if the customer cannot use the result of the work for reasons that depend on the contractor (clause 6 of article 724 of the Civil Code of the Russian Federation, clause 2 of article 471 of the Civil Code of the Russian Federation), for example due to failure to provide documentation for manufactured products or other information in accordance with Art. 726 of the Civil Code of the Russian Federation.

Delivery and installation agreement with detailed warranty conditions

These terms are not beneficial because they actually reduce the duration of the warranty. The most acceptable provisions for the buyer are those that, on the contrary, increase the warranty period.

The provision of the supply agreement regarding the beginning of the warranty period can be fixed in the following wording: “The warranty period is calculated from the moment the product begins to be used for its intended purpose, which is confirmed by the corresponding bilateral act.” Supplier's warranty obligations As a general rule, the quality guarantee of a product applies to all its constituent parts - components, parts (clause

3 tbsp. 470 Civil Code of the Russian Federation). The supplier is obliged to fulfill its warranty obligations in relation to all parts of this product. However, the norm of paragraph 3 of Article 470 of the Civil Code of the Russian Federation is dispositive, and the parties to the contract may provide for a different rule.

This agreement may be terminated by the court at the request of one of the Parties only in the event of a significant violation of the terms of the agreement by one of the Parties or in other cases provided for by this agreement or current legislation. A violation of the terms of the contract is considered significant when one of the Parties has committed an action (inaction) that entails such damage for the other Party that the further operation of the contract becomes meaningless, since this Party is significantly deprived of what it expected when concluding the contract. 11.7.

Info The consequences of termination of this agreement are determined by mutual agreement of the Parties or by the court at the request of any of the Parties to the agreement. 12. Dispute resolution procedure 12.1. The parties will make every effort to ensure that all disputes are resolved through negotiations. 12.2. Acceptance of goods in terms of quantity and quality is carried out in accordance with the Instructions on the procedure for accepting products for industrial and technical purposes and consumer goods in terms of quantity and quality, approved by the Resolutions of the USSR State Arbitration Court of April 25, 1966. No. P-7 and dated June 15, 1965 No. P-6. Acceptance of goods is formalized by a bilateral acceptance certificate. 3.5. Ownership and risks of accidental loss or damage to the goods pass to Party 1 from the moment the goods are transferred by Party 2 and the acceptance certificate is signed. 3.6. Party 1 is obliged to accept the goods transferred to it, except in cases where it has the right to demand its replacement. 3.7. The quality of the product must meet the requirements established in the technical documentation.

Party 1, on the one hand, and in the person acting on the basis, hereinafter referred to as “Party 2”, on the other hand, hereinafter referred to as the “Parties”, have entered into this agreement, hereinafter the “Agreement”, on the following: 1. SUBJECT OF THE AGREEMENT 1.1. Under this Agreement, Party 2 undertakes, within the period established by the Agreement, to deliver and transfer ownership to Party 1 (hereinafter referred to as the “Goods”), the name, quantity and other requirements for which are defined in Appendix No., which is an integral part of this agreement. 1.2.

Party 2 also undertakes, within the time period established by the Agreement, to carry out the following work on installation of the goods at the address: and hand over the result to Party 1. Party 2 is obliged to perform the following work: . 1.3.

Party 1 undertakes to accept the goods and work performed and pay the price stipulated in the Contract. 2. COST AND PAYMENT PROCEDURE FOR GOODS 2.1. The Supplier is considered to have fulfilled the obligation to supply the Goods if it delivered it to the place and time specified by the Buyer, and also if, as a result of acceptance by the Buyer, the quantity, quality, assortment and packaging of the Goods specified in . 5.8. The Goods are considered to be properly delivered, and the Supplier is considered to have fulfilled its obligations (in full or in the relevant part) from the date of signing the Goods acceptance certificate. In this case, ownership of the goods passes from the Supplier to the Buyer at the moment. 6. Rights and obligations of the parties 6.1. Under this agreement, the Supplier is obliged to: 6.1.1. Deliver Goods of appropriate quality to the Buyer under the conditions provided for in this agreement. 6.1.2. Ensure the participation of your representative in the acceptance of the Goods. 6.1.3.

What defects on the road are covered under warranty?

For KEAD and TSODD, the customer uses warranty obligations according to the types of unacceptable local defects, including:

on the roadbed, drainage system and base of the track: abysses, rain, subsidence, washouts, crumbling slopes, defects in the edge of the road and dividing strips, elevation or decrease in the level of the edges of the road and dividing strip above the level of the roadway component, erosion of ditches and collapse of trays, non-compliance location of hatches, wells and storm drain grates;
regarding asphalt concrete pavement: potholes, combs, ripples, shifts, subsidence, breaks, bitumen sweating, cracks of absolutely all varieties;
in the field of cement concrete pavement: potholes, peeling, painting, chipping of edges and corners of slabs, destruction of expansion joints, formation of ledges of more than 3 millimeters, loss of longitudinal stability, cracks of absolutely all types;
in the area of shallow treatments with a thin protective layer and a wear layer of cast emulsion-mineral mixtures: failure to maintain formation continuity;
in the field of wayfinding signs: modification of the location of the sign, failure to maintain the integrity of the outer surface;
in the area of track markings: wear (disintegration) of directions and markings along the site;
in the field of track enclosures: non-compliance with the integrity of the installation, horizontal or vertical discrepancy of the fence from its intended position, corrosion processes;
in the area of control posts: failure to maintain the integrity of the installation, change in color tone, violation of vertical markings;
for road reflectors: non-compliance with the unity of the external plane, reduction of their coefficient.

Fact
The customer has the opportunity to increase or reduce the above list of condition indicators and unacceptable local defects of the KEAD and TSODD due to the distinctive features of the highway area.

It is worth remembering that not all defects that arise on a new road are considered a warranty case. For example, the presence of a network of cracks on the surface indicates a low-quality base. If, as part of the repair work on the road, only the surface was changed, the contractor is not liable for such defects.

What to do if defects are found

According to contract review, in numerous cases, the contractor independently discovers the disadvantages of the work performed during the warranty period. Prevention of deficiencies discovered during the warranty period is carried out on the basis of a damage list agreed with the customer.

A different procedure applies to regional roads. For example, if during the warranty period the customer establishes that the work performed by the contractor is of inadequate quality, the customer draws up a report of detected damage, in which he shows the defect (comment) and the period of elimination.

Fact
Guarantees are provided for the entire scope of work performed and materials used. If, during the warranty period, shortcomings of the contract work are identified, the contractor will eliminate the shortcomings free of charge within a reasonable period determined by the agreement of the parties.

It is necessary to make changes to the tender documentation in the proportion of assigning direct responsibilities, according to the identification of warranty damages, not to the contractor, but to the customer.

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Establish general approaches in accordance with the customer’s monitoring of the progress of work, providing for the likelihood of authorized representatives of the public participating in control in an appropriate manner (based on Federal Law of July 21, 2014 N 212-FZ “On the Fundamentals of Social Control in the Russian Federation” and other regulations, regulating public supervision).

In the current conditions, the government took a number of measures focused on improving the quality of roads. Rosavtodor announced the formation of a single electronic resource, including translations of thousands of foreign regulatory and industrial documents on road construction. 9.9 million rubles were allocated to this service. from the state budget. Activities are being carried out to attract foreign contractors to the construction of roads, etc. But this is not enough, an integrated systematic approach is needed, but it simply does not exist.

Developer's responsibility

The standard scope of warranty obligations is prescribed by Article 7 of Federal Law No. 214. This is where the right to extend deadlines is described if the parties agree.

An important requirement is full compliance of the object with the conditions specified in the agreement. A single guarantee of at least three years applies to windows and doors and other similar objects.

The rule does not apply only if residents independently replace any elements. All elements and equipment are transferred when the delivery certificate is issued. All rules are described in Federal Law No. 214.

Extension of warranty period

In accordance with paragraph 6 of Art. 724 of the Civil Code of the Russian Federation, the rules of clause 2 of Art. 471 of the Civil Code of the Russian Federation, i.e. The warranty period is extended for the period when the customer could not use the result of the work due to defects discovered in it.

However, the parties have the right to establish in the contract their own procedure for extending the warranty period or cancel the possibility of its extension.

Example
An example of the wording of a condition: “The warranty period established by the contract is extended for the period when the customer could not use the result of the work due to defects discovered in it, provided that the contractor was notified by the customer of the discovery of defects in writing within the period provided for in this contract "

Product delivery guarantee

A supply contract presupposes the seller’s obligation to provide the customer with the goods specified in the contract or technical specifications in the proper configuration and quality. The supplier assumes warranty obligations for the goods. He is obliged to ensure the opportunity to use it during the period specified in the government contract. As a rule, this is 1-2 years. The period depends on the type of product supplied and the standard period of its use. For complex technical equipment, such as cars or industrial equipment, the period will be longer. The warranty begins to apply from the moment the product is delivered to the customer. It may be interrupted for a period when the customer could not use it due to the fault of the seller. If during use the customer discovers a defect and reports this to the supplier, the period is also suspended until the problem is resolved. The supplier's obligations extend to the product itself and all its components. But he is not responsible for defects and damage caused by the customer, for example due to improper use of the product. The law does not establish strict wording that must be used by the customer in the text of the contract, but as an example, you can use the following sample of a supplier’s guarantee for a product:

Arbitrage practice

An analysis of the judicial practice of considering cases related to the warranty period allows us to conclude that it is recognized as legal for the customer to eliminate defects in the work performed on his own if the contractor has evaded fulfilling this duty, despite his repeated requests.
Regarding payment for work after it has been completed with omissions, the courts recognize the impossibility of returning payment and the need to eliminate defects during the warranty period. In the event that a deposit was given, it is possible to recover the difference by a proportionate reduction in the cost of the work, as unjustified enrichment.

Important
The presence of relevant expert findings confirming a precedent of violations does not at all guarantee an unconditional positive result in court.

In any case, the legislator certainly requires unconditional evidence of the contractor’s guilt in creating defects and quality that does not meet the contract. Otherwise, the outcome will not be in favor of the customer. And this is confirmed by the conclusions of court decisions.

The guarantee under the contract and the formation of its terms is an important part of the contractual relationship and should in no case be neglected. By regulating such an important aspect only legislatively, the parties lose the opportunity to protect their rights, which, in turn, leads to protracted litigation.

Additional questions

Is it possible to refuse a warranty on construction work?

Contractors are required to carry out their work in connection with the information provided in the technical documentation. And the terms specified in the initial agreement must be strictly observed.

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The contractor must provide a guarantee regarding the high-quality execution of the order, as well as the possibility of safe operation of the facility, regardless of its purpose and other features.

The contractors are obliged to correct defects at their own expense if they were discovered after completion of all work, but before the expiration of the maximum period. The main thing is for the customer to prove and show why certain problems arose. And who was to blame for the fact that the shortcomings appeared in the first place? The requirement is established by paragraphs 4, 5 of Article 724 of the Civil Code of the Russian Federation, as well as Article 756 of the Civil Code of the Russian Federation.

There may be only a few situations in which contractors are relieved of their duties altogether.

In these cases, they do not restore the damage at their own expense:

When the warranty period established by the contract has ended. Or the maximum five-year period specified by applicable law.
If the defects are associated with normal wear and tear of buildings. Or with the fact that certain parts of the object were subjected to this effect.
In case of improper operation of the building or failure to comply with standard rules.
If repairs or other work carried out by the customer himself were performed poorly.

A written complaint from the customer is relevant only if it is proven that the culprit of the incident was the contractor. The grounds for disclaimer of liability are listed in paragraph 2 of Article 755 of the Civil Code of the Russian Federation.

Customers cannot refuse the guarantee. Even if it is not specified in the contract, a standard maximum period of time equal to five years is introduced. This is where Federal Law No. 214 comes to the rescue.

Is it possible to evade the warranty?

No, the warranty period under a contract is prescribed by law and evasion of it is regarded as an infringement and limitation of consumer rights.

Guarantee under a construction contract. In the event of construction procedures being carried out with a deviation from the contract, which reduced the quality and made the item unsuitable for use, the client has the right to make a claim about:

free elimination of defects in optimal time;
proportional reduction in the cost of work;
compensation for investments arising from the elimination of violations and shortcomings.

The contractor, in turn, instead of eliminating the deficiencies for which he is responsible, has the right to perform the work again free of charge with compensation to the customer for damages caused by the delay in performance. Then the latter must return to the performer the previously transferred work result, provided that such a return is possible.

Important
The customer has the right to refuse to fulfill the contract and demand compensation for losses caused if the defect was not eliminated within a reasonable period of time established by him or the defects are irreparable (Article 723 of the Civil Code).

Even if the contract itself exempts the performer from liability for specified defects, he nevertheless bears responsibility if it is proven that they arose through his fault.

What to do if the terms of the warranty are not met

The developer is evading the agreed guarantees, but everything has been done to fulfill them? The only way out is to restore your rights in court. The victim applies to the court with a statement of claim, in which he indicates the reasons, referring to the warranty periods under the construction contract or the law.

The claim is accompanied by an agreement and materials confirming the customer’s attempt to resolve the issue amicably, in the event of the contractor’s refusal. And if we are talking about warranty repairs, you should attach documents certifying the full payment for the work in due time.

Important
The court may remove the contractor from the obligation to fulfill the guaranteed obligations against the customer's debt if he has not paid the entire amount stipulated by the contract.

Warranty period from the product supplier

The contractual guarantee is reflected in the warranty period. During its validity, the quality parameters of the purchase must comply with the provisions of Article 469 of the Civil Code of the Russian Federation.

The supplier and buyer have the right to determine any period of time for the quality guarantee, since the Law “On Protection of Consumer Rights” does not establish limits.

Warranty obligations by law

Read about the warranty for outerwear here.

Read about the contractor's warranty obligations for the work at the following link:

When the warranty period is less than 2 years, the consumer has the right to contact the store with claims for defects in the item discovered after the end of the warranty period. The main criterion in this case is the fact that violations were detected no later than 2 years.

You need to be extremely careful when defining in the contract the start of the warranty period. This date is noted in the warranty card at the time of purchase of the product (paragraph 2 of paragraph 1 of Article 224, paragraph 1 of Article 471 of the Civil Code of the Russian Federation).

But the supplier has the right to include another procedure in the agreement. For example, the beginning of the warranty period coincides with the time the item is handed over to the customer for use or after the order is handed over upon delivery. For the buyer, these provisions are not beneficial since they reduce the warranty period. It is clear that the most optimal option for the buyer becomes an unprofitable enterprise for the supplier.