Sample claim in connection with violation of the deadline for completing work

Grounds for termination of a contract by a contractor without trial

The following grounds are provided for unilateral refusal of the contract.

The customer does not remove obstacles that prevent the contractor from performing the work under the contract.

According to Article 716 of the Civil Code, the contractor has the obligation to notify the customer of a number of circumstances that make it impossible to continue work:

materials, equipment or technical documentation provided by the customer are unsuitable or of poor quality;
the customer’s instructions on the method of performing the work will lead to unfavorable consequences for him;
other circumstances that do not depend on the will of the contractor and may negatively affect the results of the work performed or lead to missed deadlines.

In this case, the contractor is obliged not only to warn the customer about this, but to suspend the work until the customer takes the necessary measures to eliminate these difficulties.

To correctly formalize a temporary suspension of work, it is necessary to send the customer a written notice of suspension of work , where you can indicate the following information: information about the contract under which you are working; what difficulties arose during its implementation; why it is impossible to continue the work further or what is the risk of continuing the work without eliminating the obstacles that have arisen; refer to Article 716 of the Civil Code of the Russian Federation and note that you are suspending work until the customer takes the necessary actions. For example, he will provide the necessary technical documentation or correct errors in it, indicate another way of performing work, etc.

If there is no response from the customer within the time period established in the contract, or within a reasonable time, or the customer refuses to remove obstacles to the completion of the work, then the contractor has the right to refuse to perform the contract and recover the losses incurred from the customer.

For example, an organization entered into a contract with the local administration to complete the construction of a sports and recreation center after another construction company was unable to complete it. When executing the contract, the contractor encountered many difficulties, including the lack of conservation of the facility, where no work was carried out for a long time, which significantly affected the quality of the foundation and metal frame of the building. The contractor informed the customer that he could not continue to carry out the work, since repair and restoration work on the foundation and metal frame was required for a separate fee. The customer insisted that the contractor must complete these works for the price established in the contract. The contractor notified the customer of the suspension of work and recorded this fact in the general work log. Since no action from the customer followed, the contractor decided to refuse to fulfill the contract. And the court recognized the legality of this decision (Resolution of the Arbitration Court of the Volga-Vyatka District dated December 17, 2018 No. F01-5889/2018 in case No. A11-6816/2017).

Note! Termination of a contract in cases provided for in Article 716 of the Civil Code of the Russian Federation is a right, not an obligation, of the contractor. That is, by warning the customer about existing shortcomings and possible negative consequences, the contractor declines responsibility for them and can continue work.

For example, the company has undertaken to install a concrete slab. Before starting work, the contractor drew the customer's attention to the fact that the bases of the floor slab did not comply with the design documentation. The contractor notified the customer twice in writing about this fact (reports were drawn up and entries were made in the concreting log). The customer did not take any action - did not eliminate the defects of the foundation, did not offer another way to perform the work. The contractor completed the work, but some time after the work was completed, the customer discovered shortcomings in the results of the work performed - cracks appeared on the floor surface. He went to court demanding that the contractor eliminate the deficiencies. The customer, trying to defend his interest, went all the way to the Supreme Court of the Russian Federation. But the said court noted that the contractor acted within the law - he notified the customer about the shortcomings of the floor base, suspended work, awaiting the customer's actions, accordingly, refusal of the contract in this case is the right, and not the obligation of the contractor. The contractor is not responsible for subsequent deficiencies (Decision of the Supreme Court of the Russian Federation dated June 5, 2017 No. 306-ES17-5652 in case No. A49-11202/2015).

The customer did not fulfill counter-obligations.

The contractor has the right not to begin work or to suspend its execution if the customer does not fulfill his obligations under the contract or if it is clear that he will not fulfill them on time. For example, the customer does not provide technical documentation, materials, equipment or an item that can be recycled, and also interferes with the execution of the contract.

In such circumstances, the contractor has the right to unilaterally terminate the contract without trial and recover damages.

Example 1. An organization entered into a contract with the local administration for the reconstruction of a kindergarten. The contract price was 294,573,229 rubles. But an obstacle arose for the contractor to carry out his work - an initiative group of citizens went to court with a demand to declare illegal the actions of the local administration to create a land plot on which the contractor was supposed to carry out construction work, since this plot is a public garden and is used by citizens for passage. The court satisfied these requirements and prohibited the contractor from cutting down green spaces on the site. In court, the contract was terminated due to the fact that it was impossible to fulfill due to the fault of the customer.

The court satisfied the demands for recovery of the contractor's losses from the customer, namely: costs for the supply of materials to the site, payment for the transportation of goods to the site, travel of workers to carry out construction work to the site, security of the site, etc. The total amount of damages recovered by the court was 4,479,954 rubles (Resolution of the Arbitration Court of the Far Eastern District dated October 4, 2019 N F03-4042/2019 in case N A51-3424/2019).

Losses in this case include not only the costs of purchasing construction materials, transport services, storage services, but also the costs of paying for a bank guarantee. The Supreme Court of the Russian Federation indicated that the contractor bears the costs of paying for the bank guarantee according to the customer’s requirements in order to establish contractual relations with him, fulfill obligations under the contract and make a profit, at the expense of which, among other things, he plans to cover these costs. And due to the violation of its contractual obligations by the customer, the contractor cannot compensate for these expenses (Review of judicial practice in resolving disputes related to the application of legislation on independent guarantee, approved by the Presidium of the Supreme Court of the Russian Federation on June 5, 2019).

Example 2. An organization entered into a contract with a school to carry out routine repairs in 4 schools. The main condition for carrying out the work is that repair work cannot be carried out while children are at school. In this regard, the parties agreed on a start date for work: 06/01/2018. But on the specified date, the customer provided the contractor with access to only one school; for the other three facilities, access was provided in violation of the deadlines and in a limited manner. The contractor repeatedly sent complaints to the customer demanding access to the facilities. But in response, I received only complaints from the customer, who, trying to shift responsibility, accused the contractor of failure to fulfill his obligations.

To confirm the customer’s guilt in violating obligations, the contractor was forced to record violations on the part of the customer by video recording and calling the police.

After it became clear that the customer did not plan to provide access to the facilities, the contractor decided to refuse to execute the contract and sent it to the customer. In court, the contractor managed to prove the legality and validity of his decision (Resolution of the Arbitration Court of the Moscow District dated October 17, 2019 N F05-16125/2019 in case N A40-223937/2018).

The customer provided materials that would negatively affect the quality of the work performed.

As a general rule, the contractor uses his own materials and equipment when carrying out work. But the contract may assign the obligation to provide materials and equipment to the customer.

During the work process, the contractor may realize that the materials and equipment provided by the customer cannot be used to complete them, since the quality of the work result will significantly deteriorate. In this case, the contractor may require the customer to replace the submitted materials or equipment with others.

If the customer refuses to replace it, then, by virtue of Article 745 of the Civil Code of the Russian Federation, the contractor has the right to withdraw from the contract, as well as to receive payment in proportion to the work already performed.

Procedure for termination of a contract by a contractor without trial

So, the contract was checked and they found the right to unilateral refusal, and the customer violates the terms of the contract, for example, does not provide materials or equipment. Now it is necessary to formalize the termination of the contract correctly and in accordance with the law.

File claims against the customer regarding his violation of obligations and send them in writing to the customer.
If there are grounds for suspending work, prepare a notice of suspension of work (Articles 716 and 719 of the Civil Code of the Russian Federation) and send it to the customer with a warning that if the customer fails to fulfill its obligations, the contractor has the right to refuse the contract.
The contractor’s decision to unilaterally refuse to fulfill obligations under the contract is the correct name for the document that should be sent to the customer if you decide to end your legal relationship with him.
The specified decision, signed by the head of the company or another authorized person, must be sent to the state customer no later than 3 working days. How to properly direct the decision? First, look in the contract at the official address of the state customer; the decision must be sent to this address. If there is a link in the contract to the customer’s email address or you corresponded at a specific email address with the customer’s representative, then you can also send the decision electronically to the specified email addresses. The law identifies the following methods for delivering a decision: - by registered mail with acknowledgment of receipt and a list of attachments to the address specified in the contract - mandatory ; - by telegram, fax, e-mail or other means that will allow you to record the fact of delivery of the solution to the customer’s representative - additionally . Only such actions can indicate that the contractor has faithfully fulfilled its obligations to notify the customer of the termination of the contract. The date of proper notification is the date the contractor receives a document confirming delivery of the decision on unilateral refusal to the customer.
From the date indicated above, when the contractor received the paper confirming delivery of the decision to the customer, it is necessary to count 10 days, and after this period the decision comes into force, the contract is considered terminated. For example, the contractor sent the customer a registered letter with a decision to unilaterally cancel the contract on November 1, 2018. And on November 15, 2021, the contractor received a notification that the letter had been delivered to the customer. From November 15th we begin counting down 10 days. Thus, on November 26, 2021, the decision comes into force and the contract is terminated from this date.

Note! The contractor will have to cancel his decision if the customer, before the decision comes into force, is able to eliminate the violations of the terms of the contract that served as the basis for making such a decision.

Terms of termination

Termination of the contract is possible:

by agreement of the parties;
in court in case of violation of the contract by one of the parties;
in court if there is a significant change in circumstances;
in court for reasons provided for by law in other types of contracts;
unilateral termination in situations provided for by law;
unilateral refusal in cases and situations provided for by the clauses of the contract itself;
unfounded unilateral refusal in cases provided for in the agreement.

The first option is the most beneficial for the parties and the easiest to implement. Often the parties try to arrive at just such a reason for terminating the contract. Termination in case of violation of the contract by one of the parties is considered in court.

It is necessary to prove a significant violation of the rules of the contract, which may be indicated in the document itself or in the law. These violations may be regulated by both the Civil and Criminal Codes, depending on the severity and consequences of the violation.

Termination due to changes in circumstances is possible if:

the parties did not foresee the occurrence of the circumstances;
circumstances could not be overcome;
the risk of negative consequences of the change does not relate to any one party;
the continuation of the contract will cause damage to the parties in one form or another due to the circumstances.

This termination clause is very difficult to justify, and in practice it is resorted to very rarely.

Certain types of contracts have their own termination circumstances, often requiring the initiative of one of the parties, these include:

accession agreement, Article 428 of the Civil Code of the Russian Federation;
agreement for the sale of an enterprise, Article 565 of the Civil Code of the Russian Federation;
trust management agreement, Article 1019 of the Civil Code of the Russian Federation.

For example, in the latter case, the manager was not informed that the property that was entrusted to him was pledged to the bank. In this case, he can refuse the contract and terminate it.

Unilateral termination in some cases is possible provided:

the contract implies the possibility of unilateral termination (agreement of assignment, gratuitous use, trust management of property);
one of the parties violated contractual terms.

Then you can terminate the contract with a unilateral initiative. When concluding an agreement, you can outline possible options for its termination. Then this type will qualify for the waiver provided for in the clauses of the contract itself.

It should be remembered that such wording must be stated when concluding the document, which makes the standard form original and suitable for specific clients.

The waiver may also be specified in the wording of the contract itself. It may also be dictated by legislative norms in Article 450 of the Civil Code of the Russian Federation.

In what cases will it be necessary to go to court to terminate a contract at the initiative of the contractor?

In accordance with the provisions of civil law, in some cases judicial proceedings cannot be avoided. If there are no grounds for unilateral refusal (that is, when the contract can be terminated without trial), then you must be guided by Article 450 of the Civil Code of the Russian Federation, which allows you to terminate the contract through the court in the following cases:

the customer has materially breached the terms of the contract;
when there is a significant change in circumstances;
in other cases provided for by the contract.

A significant violation of obligations on the part of the customer may be a refusal to pay for work performed (Resolution of the Arbitration Court of the West Siberian District dated 04/19/2019 N F04-1444/2018 in case No. A75-16023/2017, Resolution of the Arbitration Court of the East Siberian District dated 08.10. 2019 N F02-3522/2019, F02-4303/2019 in case N A19-11757/2018, Resolution of the Arbitration Court of the East Siberian District dated 06/19/2017 N F02-1648/2017 in case N A33-9181/2016).

So, for example, if the production of work and its payment are stipulated by the contract in several stages, and the customer delayed payment of the cost of work for a separate stage for a long time or did not pay for it at all, then this can be considered a significant violation of its obligations.

It is worth remembering that not every violation of contractual obligations may be significant. The Supreme Court of the Russian Federation noted that the party citing a significant violation of the contract must provide the court with evidence of such violation: non-receipt of income, possible incurrence of additional expenses or the occurrence of other consequences that significantly affect the interests of the party. The very fact of the existence of such a violation, by virtue of Art. 450 of the Civil Code of the Russian Federation cannot serve as a basis for termination of the contract (Decision of the Supreme Court of the Russian Federation dated April 3, 2001 N 18-B01-12).

Failure to pay the advance by the customer may also constitute a material breach of obligations, which allows the contractor to terminate the contract in court. The Presidium of the Supreme Arbitration Court of the Russian Federation indicated this possibility, provided that the occurrence of obligations under the contract is due to the payment of an advance (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 3, 1996 N 779/96).

In the second case, a significant change in circumstances is understood as a situation where 4 conditions are met at once:

at the conclusion of the agreement, the customer and the contractor believed that such a change would not occur;
the contractor could not influence the reasons that caused the change in circumstances after they occurred;
the contractor will lose what he should have received at the conclusion of the contract if its provisions remain unchanged;
the essence of the contract or customs do not imply the risk of changes in circumstances by the counterparty declaring termination of the contract.

Termination of a contract through court is possible only after the interested party sends the counterparty an offer to terminate the contract by agreement of the parties. If there is no response or refusal to conclude such an agreement, you can file a claim in court to terminate the contract.

How does unilateral termination of a contract occur?

There are several options:

Refusal of the contract (when the terms of the agreement become unfavorable or unenforceable).
Termination of conditions by court decision.

We invite you to read: Why increase the authorized capital
According to Article 717 of the Civil Code, the Customer has the right to terminate the contract at any stage before the actual acceptance of the results. In some cases, the agreement limits the employer's right to do so.

However, if the contract was terminated at the initiative of the Customer, he will need to compensate the Contractor for losses and pay for the work actually performed. Losses are compensated within the difference between the amount allocated to pay for the entire process and the funds paid for the work done by the time of termination.

Important! Even at the stage of signing the document, you can determine the amount that will be transferred to the Contractor in the event of a unilateral refusal to fulfill the conditions.

The Customer may have the following grounds for terminating the contract:

The presence as a result of serious deficiencies that cannot be eliminated.
Delaying the start of execution or performing too slowly, which will not allow you to meet the scheduled deadline.
Detected quality non-compliance with approved indicators.

Difficulties may arise when, during the work process, it becomes clear that additional operations will be required. Another situation is the increase in the cost of building materials used. Here the Contractor is expected to promptly inform the Owner of the changes. If he did not do this, he will cover expenses in excess of the established fee himself. And the Customer has the following choice: an agreement to terminate the contract or acceptance of changes.

According to the Civil Code, both parties have the right to terminate the contract unilaterally. There are two possible options.

Refusal of the contract. Each party has such a right in the event that the terms of the agreement become unfavorable or impracticable.
Termination of conditions by court decision. It is often necessary to go to court in cases where, after one party renounced its obligations, the rights of the counterparty were violated.

In the event of unilateral termination of a work contract, action must be taken even before the result is accepted. It is necessary to send a written notice of termination of the contract, a unified form for which is not provided. Considering that it can come at any stage, you will need to resolve the issue regarding payment for work already completed.

If it is not possible to agree on the procedure for compensation, there is nothing left to do but terminate the contract through the court. In such a situation, not only the issue of waiver of obligations will be resolved, but also the procedure for compensation for losses. However, not in all cases the court will terminate the terminated agreement.

What payments can be received from the customer if the contractor terminates the contract?

As a general rule, in the event of a violation of rights, the contractor has the right to compensation for damages in accordance with Article 15 of the Civil Code of the Russian Federation. But the relationship between the contractor and the government customer is regulated by a special regulatory act - the Law on the Contract System, which contains special rules for the recovery of damages in case of unilateral refusal to fulfill obligations under the contract. In this case, losses mean both actual damage (that is, actual expenses incurred related to the fulfillment of one’s obligations under the contract) and lost profits (that is, the profit that a party could have received if his right had not been violated).

Thus, according to Part 23 of Article 95 of the Law on the Contract System, in the event of a unilateral refusal to fulfill a contract, a party has the right to recover damages only in the form of actual damage. And you can’t count on recovering lost profits. This is confirmed by judicial practice (Resolution of the Arbitration Court of the Moscow District dated 06/04/2019 No. F05-7217/2019 in case No. A40-219736/2018, Resolution of the Arbitration Court of the Central District dated 01/13/2017 No. F10-5665/2016 in case No. A83-849/2016).

As expenses incurred by the contractor to fulfill obligations under the contract, you can claim for recovery, for example, the costs of purchasing materials and equipment, their transportation, storage, etc., as well as the costs of issuing a bank guarantee.

Note! The limitation on the recovery of damages in the form of actual damage applies only to cases of unilateral refusal to fulfill obligations under the contract, that is, when the contractor terminated the contract without trial. If the contractor does not have the right to unilateral refusal and had to resort to the help of the court, then not only real damage, but also lost profits can be claimed for recovery.

In addition, the law provides for penalties for violation of obligations by both the contractor and the government customer. Thus, for delay in fulfilling its obligations, the customer will have to pay the contractor a penalty in the amount of 1/300 of the refinancing rate of the amount not paid on time, the penalty is paid for each day of delay (Part 5 of Article 34 of the Law on the Contract System). As well as penalties for violation of obligations that are not related to delay. The amount of the fine must be specified in the contract. The procedure for establishing penalties is determined by Decree of the Government of the Russian Federation dated August 30, 2017 N 1042. Thus, depending on the price of the contract, the fine for each fact of failure to fulfill obligations by the customer can range from 1,000 rubles to 100,000 rubles.

To recover damages and penalties from the government customer, it is necessary to send a claim to it. If voluntary compensation is not made, legal proceedings will be required.

Example of a claim for violation of deadlines

Individual entrepreneur
Konstantin Leonidovich Pashchenko

address: 169900, Vorkuta, lane. Tikhonova, 77

from Kovalchuk Anna Viktorovna

address: 169902, Vorkuta, pl. Geofizicheskaya, 37-16

tel. +6926281256296

Claim for violation of deadlines

In accordance with the terms of the contract No. 791D491 dated 08/09/2016, concluded between IP Pashchenko K.L. (Contractor) and Kovalchuk A.V. (Customer), the Contractor has undertaken to carry out construction work on the reconstruction of the porch in the house at the address: Vorkuta, lane. Tikhonova, 77.

In accordance with Art. 747 of the Civil Code of the Russian Federation, the Customer is provided with access to the land plot to carry out construction work throughout the entire term of the contract. In accordance with clause 3.8 of Agreement No. 791D491 dated 08/09/2016, the completion date for the work was set at 09/09/2016, acceptance of the work should have been carried out within 3 calendar days after the actual completion of the work.

However, in violation of the requirements of Article 708 of the Civil Code of the Russian Federation, clause 3.8. The contracts and construction work were completed on September 29, 2016, the work acceptance certificate was signed on September 30, 2016. Thus, the Contractor violated the deadlines for fulfilling its obligations.

In accordance with Art. 730 and 740 of the Civil Code of the Russian Federation, the norms of the Law on the Protection of Consumer Rights are applied to household contracts. In accordance with Art. 28 of the above Law, if the deadlines for completing the work are violated, the Customer has the right to assign a new deadline for the completion of the work. Violation of the deadlines entails the accrual of a penalty to the consumer for each day (hour, if the period is defined in hours) of delay in the amount of three percent of the price of performing the work (rendering the service) or, when it is not defined, the total price of the order. The penalty for violation of deadlines for completing the work is collected for each day of delay until the completion of the work.

The total price of the work is 20,000 rubles, the period of delay is 21 days.

Calculation of the penalty: 3%*20,000*21=12,600 rubles.

Based on the above, I demand that you pay a penalty (penalty) in the amount of RUB 12,600 within 10 days from the date of receipt of this claim. in connection with the violation of the deadlines for the delivery of construction work under contract No. 791D491 dated 08/09/2016. Otherwise, I will be forced to go to court with a statement of claim for the protection of consumer rights, which will entail additional legal costs, the right to compensation of which is directly provided for by the Code of Civil Procedure of the Russian Federation, as well as the right to compensation for moral damage and a fine.

10/05/2016 Kovalchuk A.V.

Conclusions:

To formalize a unilateral refusal to fulfill obligations under the contract, the contractor must follow the following procedure:

Record violations by the customer in writing.
If the contractor's requirements, reflected in the claims, have not been eliminated, and there are grounds for suspending work, it is necessary to prepare a corresponding notice.
During the period of suspension of work, the customer did not remove obstacles to the completion of work, which means that the contractor has the right to unilaterally refuse to perform the contract. To do this, it is necessary to prepare an appropriate solution.
A formalized decision on unilateral refusal to fulfill obligations under the contract must be sent to the customer by registered mail, and also as an additional method - by e-mail, fax, etc.
After notification of delivery of the decision to the customer is received, 10 days must be counted. After this period, the decision is considered to have entered into force and the contract is terminated.
Now you can demand compensation from the customer for losses, as well as payment of penalties.
If the customer does not voluntarily compensate for the damage and pay the fine, as well as in the event that the customer decides to challenge the contractor’s decision in court, legal assistance may be required to defend its interests in court. Lawyers under 44-FZ will help you prepare the necessary procedural documents and represent your interests in court.