Construction contract. Ideal construction contract for a contractor Contract for design and survey work

The legal service of the organization must be very careful about agreeing on the terms of this type of contract in order to exclude the possibility of adverse consequences for the organization. The most important conditions will be discussed in this article.

Essential terms of the construction contract.

The definition of a construction contract is given in clause 1 of Art. 740 of the Civil Code of the Russian Federation: the contractor undertakes to build a certain object on the instructions of the customer within the period established by the contract or to perform other construction works, and the customer undertakes to create for the contractor the necessary conditions to perform the work, accept their result and pay the stipulated price. Based on this, we can conclude that the essential terms of the construction contract are the subject and the term.

The subject of this agreement is the performance of work on the construction or reconstruction of an enterprise, building (including a residential building), structure or other facility, as well as the performance of installation, commissioning and other works inextricably linked with the facility under construction. The rules on a building contract are also applied when carrying out work on overhaul buildings and structures, unless otherwise provided by the contract (clause 2 of article 740 of the Civil Code of the Russian Federation).

The subject must be properly defined, otherwise the contract may be invalidated. This conclusion was made in the Order of the Second Arbitration appellate court dated 10.09.2009 No. A17-1771 / 2009. The court indicated that the work contract dated 01.12.2007 No. 4 does not fully determine the scope and content of the work (there is no technical documentation and estimate). The analysis of this contract did not allow us to establish with certainty what, in fact, the customer's task is. Appendix 1 (which is an integral part of the contract) was only a protocol of the contract price, in which the cost of 1 cubic meter of masonry was agreed. m of brick. The handwritten record did not make it possible to establish by whom and under what circumstances it was made and whether it was agreed with the persons who signed the document. In addition, the controversial handwritten note in any case cannot replace the one required at the conclusion of the construction contract. technical documentation, in which the types and volumes of work performed must be named. Thus, due to the impossibility of reliably determining the subject of the contract, the specified work contract was recognized as not concluded.

Example 1.

Let's say construction organization when erecting a multi-storey residential building, it is necessary to attract a third-party company to install windows. In this case, the subject of the construction contract can be formulated as follows:

The Contractor undertakes, at the request of the Customer (in accordance with the approved project documentation and specifications), to carry out the manufacture, supply, installation, adjustment of PVC products (windows, balcony doors, loggia windows) on the construction of a residential house No. 1 (address according to the general plan), located at 1 Heroev Avenue, in the Sovetsky district of city N (hereinafter referred to as works), in accordance with the terms of this Agreement, and the Customer undertakes to accept the result of the work and pay the price specified in this Agreement.

The result of work under this Agreement is assembled and ready-to-use PVC products (windows, balcony doors, loggia windows).

Place of performance of works: Russia, city N, Sovetskiy district, Prospect Geroev, 1, construction of residential building No. 1 (address according to the general plan) (hereinafter referred to as the Object).

The requirements for the performance of work are reflected in the specification (Appendix 1 to the Contract, which is its integral part) and the approved project documentation of the Facility, transferred to the Contractor under the acceptance certificate (Appendix 2 to this Contract, which is its integral part).

In accordance with paragraph 1 of Art. 708 of the Civil Code of the Russian Federation, the work contract specifies the initial and final terms of the work. By agreement between the parties, the contract may also provide for completion dates for individual stages of work (interim periods). Article 190 of the Civil Code of the Russian Federation indicates that a period established by law, other legal acts, a transaction or a court-appointed period is determined by a calendar date or the expiration of a period of time, which is calculated in years, months, weeks, days or hours.

Example 2.

In the contract we are considering, the condition on the term of the work can be formulated as follows:

Work under this Agreement must be completed in full and handed over to the Contractor in accordance with the terms of this Agreement, the requirements of the specification and design documentation of the Facility in the following terms:

• start of work - September 1, 2011;
• completion of work - December 31, 2011

An increase in the terms of work is possible only due to force majeure circumstances.

The date of completion of the work is considered the date of signing by the commission, consisting of representatives of the Customer and the Contractor, the acceptance certificate.

The terms specified in the Agreement are the starting points for calculating the forfeit in the event that the Contractor fails to fulfill its obligations under this Agreement.

The term can also be determined by an indication of an event that must inevitably occur.

Quite often, the parties to the contract determine the starting date by the moment the customer makes an advance. Until recently, the courts in such cases recognized the term clause as inconsistent, and the contract as not concluded. However, the Presidium of the Supreme Arbitration Court, in its Resolution of 18.05.2010 No. 1404/10 on case No. A40-45987 / 09-125-283, indicated: if the initial moment of the period is defined as an action by a party or other persons, including at the time of payment of the advance, and such actions committed within a reasonable period of time, the uncertainty in setting the timeframe for the production of work is eliminated. Consequently, in this case, the condition on the period of work should be considered agreed, and the contract should be considered concluded.

The usual terms of a building contract.

The condition on the price is not an essential condition of the construction contract, except for the case when the parties have come to an agreement to recognize it as such.

According to Art. 746 of the Civil Code of the Russian Federation, payment for the work performed by the contractor is made by the customer in the amount stipulated by the estimate, within the time frame and in the manner established by law or by the construction contract. In the absence of relevant instructions in the law or the contract, 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 is done properly and within the agreed time frame or with the customer's consent ahead of schedule.

A construction contract may provide for payment for work in a lump sum and in full after the acceptance of the object by the customer. In accordance with clause 8 of the Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.24.2000 No. 51 "Review of the practice of resolving disputes under a construction contract", the basis for the occurrence of the customer's obligation to pay for the work performed is the delivery of the result of the work to the customer.

Quite often, the customer insists on the inclusion of a guarantee retention clause in the contract, according to which he withholds part of the price of the work in the form of ensuring that the contractor properly fulfills his obligations on the quality of the work performed. This amount is paid to the contractor, subject to the elimination of comments on the work performed or in the absence of comments during warranty period.

Guarantee retention, of course, is not a type of such method of ensuring the fulfillment of obligations as retention, however, as mentioned above, the Civil Code of the Russian Federation provides for the possibility of determining the procedure for payment for work performed by the construction contract itself. Therefore, this condition does not contradict the legislation, which is confirmed in judicial practice.

In particular, in the Resolution of the FAS PO dated 26.08.2010 No. A65-20024 / 2009, the court indicated that, in accordance with paragraphs 1 and 4 of Art. 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to conclude an agreement. The terms of the contract are determined at the discretion of the parties, unless the content of the relevant condition is prescribed by law or other legal acts (Article 422 of the Civil Code of the Russian Federation). In the contract under consideration, the parties provided for the procedure for payment for work, as well as a 5% deduction for the warranty period for a period of 14 months from the date of approval of the acceptance certificate for the completed object acceptance committee... The appellate court rightfully recognized the condition of the contract on withholding 5% of the contract price as related to the payment procedure, which does not contradict the provisions of paragraph 2 of Art. 746 of the Civil Code of the Russian Federation.

Note that earlier decisions of the courts expressed a different position. So, in the Decree of the FAS MO dated November 28, 2005 No. KG-A40 / 11581-05-P-1,2 it was said that the condition of the contract on payment for the work performed by the contractor and accepted by the customer with the latter withholding 5% of the cost of work to cover possible costs caused by improper performance by the contractor of the warranty obligations under the contract, contradicts the content and meaning of Art. 359 and 740 of the Civil Code of the Russian Federation. In this regard, the court concluded that this condition of the contract is not applicable, and the rights of the customer are not subject to judicial protection.

Example 3.

The contract can provide next order payment for work:

The price of the Agreement is 5,000,000 rubles. (five million rubles), including VAT (18%), subject to manufacture, delivery, installation, adjustment of 1000 sq. m of windows, balcony doors (hereinafter - OK) at the Facility and 1000 sq. m of loggia windows (hereinafter - OL) and is calculated from the calculation:

• RUB 3000 for 1 (one) sq. m mounted at the OK Object;
• 2000 RUB for 1 (one) sq. m mounted at the Object OL.

The indicated price of the Agreement includes the cost of manufacturing, supply, installation, adjustment of OK and OL at the Facility, performance of related (including preparatory) and other works, as well as the amount of all taxes, fees, customs duties, other mandatory payments, compensation for other costs stipulated by the legislation of the Russian Federation, etc., that is, it is firm and final.

Payment for the work performed is carried out by bank transfer by payment orders by transfer by the Customer Money to the settlement account of the Contractor specified in this Agreement, in the following order:

• The Customer transfers the advance payment to the Contractor in the amount of 3,000,000 rubles. (three million rubles) within 15 (fifteen) days from the date of signing the Agreement with the subsequent offset of the advance when making the final settlement under this Agreement;
• the final settlement under this Agreement is carried out within 15 (fifteen) days from the date of signing by the Parties of the acceptance certificate of the work performed (without claims) minus the amount of the advance paid. In addition, payments (final settlement under this Agreement) are made minus the amount of the guarantee withholding (in the amount of 10% of the amount of work performed, specified in the acceptance certificates), which is withheld as security for the proper performance by the Contractor of its obligations under the Agreement for a period of one a month from the moment of putting the Object into operation and transferring it to the owners of the premises of the Object (the indicated period of guarantee retention also includes the period of time from the moment of signing the acceptance certificates of the work performed until the moment of putting the Object into operation and transferring it to the owners of the premises of the Object). This amount is paid to the Contractor, subject to the elimination of comments on the work specified in the relevant acts, or in the absence of the indicated comments.

The work is paid by the Customer in accordance with the actually completed volumes.

If the details of the Contractor specified in this Agreement are changed, the Contractor shall notify the Customer about this within one day. official document signed by the head and chief accountant and certified by the seal. Otherwise, all risks, including those associated with the transfer by the Customer of funds to the account of the Contractor specified in this Agreement, shall be borne exclusively by the Contractor.

Payment documents issued to the Customer in mandatory should contain links to source documents, as well as documents confirming the fulfillment of obligations by the Contractor. The date of payment is the day of receipt of funds to the settlement account of the Contractor. The Customer has the right to delay the transfer of funds to the Contractor for the work performed in the event of failure to eliminate the defects identified during the acceptance of the work performed.

Provision of construction materials.

According to Art. 745 of the Civil Code of the Russian Federation, the obligation to provide construction with materials (including parts and structures) or equipment is borne by the contractor, if the construction contract does not stipulate that the provision of construction in general or in a certain part is carried out by the customer. This condition must also be given close attention, since the party whose duties include the provision of construction is responsible for the discovered impossibility of using the materials or equipment provided by it without deteriorating the quality of the work performed, unless it proves that the impossibility of use arose due to circumstances for which the other is responsible. side.

Therefore, in the contract, it is necessary to determine the party who is responsible for providing the construction with materials and equipment, and the procedure for their payment. Otherwise, difficulties may arise in protecting the rights of the relevant party.

For example, in the Resolution of the FAS SKO dated 10.06.2010 No. A53-14938 / 2009, the court indicated: the plaintiff's claims to recover 75,154 rubles. (the cost of materials spent on poorly performed construction work) was declared by the plaintiff unreasonably, since it does not appear from the terms of the contract concluded by the parties that the obligation to ensure the construction is imposed on the customer. On the contrary, the contract under consideration states that the contractor is engaged in the purchase of materials, and the customer undertakes to pay for the work, the cost of which is determined in the estimate, taking into account the cost of materials.

Note that in accordance with paragraph 3 of Art. 745 of the Civil Code of the Russian Federation, in the event that it becomes impossible to use the materials or equipment provided by the customer without deteriorating the quality of the work performed and the customer's refusal to replace them, the contractor has the right to withdraw from the construction contract and demand from the customer to pay the price of the contract in proportion to the part of the work performed.

Example... The condition on the provision of construction materials and equipment in the contract can be formulated as follows:

Provision of construction materials, products and structures, other engineering equipment is carried out by the Contractor.

All materials and equipment supplied for construction must have appropriate certificates, technical data sheets and other documents certifying their quality.

Acceptance, unloading and storage of materials and equipment arriving at the Facility pursuant to the Agreement shall be carried out by the Contractor.

Responsibility for the safety of all materials and equipment supplied for the implementation of the Agreement until the full completion of the work (including the period of time during which the Contractor will eliminate the deficiencies identified during acceptance, dismantle the temporary structures erected by him, as well as remove the construction site construction equipment, mechanisms, equipment, garbage left after the completion of the work) shall be borne by the Contractor.

The contractor is responsible for the conformity of the materials and equipment used state standards and technical conditions and bears the risk of losses associated with their inadequate quality, non-compliance with state standards, technical specifications and other similar requirements.

Monitoring the progress of work.

Construction is a complex and responsible process, so the customer must monitor the contractor's activities and promptly respond to deviations from the order of work. Article 748 of the Civil Code of the Russian Federation gives the customer the right to monitor and supervise the progress and quality of work performed, compliance with the deadlines for their completion (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.

Example 4.

This condition in the construction contract can be formulated as follows:

The quality of the work performed must comply with the requirements of the current GOST, SNiP, TU, other regulatory and technical documents, approved project documentation and specifications.

The Customer has the right to appoint his representative at the construction site, who, on behalf of the Customer, together with the Contractor, will draw up acts for the work performed, exercise technical supervision and control over the work, as well as check the compliance of the materials and equipment used by the Contractor with the terms of the Agreement, the Project documentation of the Facility and specifications. ...

The Customer's representative has the right to unimpeded access to all types of work at any time during the entire period of work.

The works must be carried out by the Contractor in strict accordance with the terms established in this Agreement.

The Contractor independently organizes the performance of work at the Facility according to his plans, in accordance with the terms of the work, established by this Agreement. Security general order when performing work at the Facility, the removal of construction waste from the construction site of the Facility during the period of work is the responsibility of the Contractor.

During the construction process, the Contractor is obliged to use only those materials that are indicated in the project documentation of the Facility or agreed with the Customer.

If the Customer rejected in writing the use of materials that do not meet quality standards, the terms of the Agreement, the Contractor is obliged at his own expense and on his own to replace them with other materials, taking into account the requirements of the Customer, taking into account that such replacement should not increase the terms of work ...

In the process of performing work, the Customer has the right to issue to the Contractor in writing motivated orders in relation to:

• replacement of substandard materials;
• termination of any work by the Contractor if it does not comply with the documentation, SNiPs and the requirements of the current legislation of the Russian Federation;
• alteration of works to ensure their proper quality.

Three days before the start of acceptance, the Contractor notifies the Customer in writing about the readiness of individual critical structures and hidden works.

If the Customer discovers poorly performed work, the Contractor, on his own and at his own expense, is obliged to redo these works within the time period specified by the Customer to ensure their proper quality. If the Contractor fails to fulfill this obligation, the Customer has the right to recruit another organization to correct poorly performed work, paying the costs at the expense of the Contractor.

The order of delivery and acceptance of works.

The general rules for the delivery and acceptance of work performed are established in Art. 753 of the Civil Code of the Russian Federation. In accordance with it, the customer, who received a message from the contractor about the readiness to hand over the result of the work performed under the construction contract or (if provided by the contract) of the completed stage of work, is obliged to immediately proceed with its acceptance. By general rule the customer organizes and carries out the acceptance of the result of the work at his own expense.

The delivery of the result of the 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 is made in it and the act is signed by the other party.

By Decree of the State Statistics Committee of Russia dated 11.11.1999 No. 100, unified forms of primary accounting records for the accounting of work in capital construction and repair and construction work (entered into force on 01.01.2000), including form No. KS-2 "Certificate of acceptance of work performed", No. KS-3 "Certificate of the cost of work performed and costs" ...

In accordance with the Instructions for the use and filling of these unified forms (Letter of Rosstat dated May 31, 2005 No. 01-02-9 / 381), form No. KS-2 is used for acceptance by the customer of completed contract construction and installation works for industrial, residential, civil and other purposes ... For settlements with the customer for the work performed, form No. KS-3 is applied.

If the customer believes that the work does not meet the quality requirements established by the contract, he may refuse to sign the act. But the refusal must be motivated, otherwise the court may oblige the customer to pay for the work.

In particular, the FAS DVO, in its Resolution No. F03-1529 / 2011 of 03.05.2011 in case No. A51-8880 / 2010, established that the contractor, having completed the work stipulated by the transactions, sent to the defendant the acts of work performed in the form No. KS-2, which last received. However, the customer did not sign these acts, did not present his objections or claims regarding the quality, volume and cost of the work, did not justify his refusal to sign the documents. In such circumstances, the court recognized the unilateral acts of the work performed as complying with the norms of civil law and considered the fact of the work performed by the contractor under the controversial work contracts as established. As a result, the court indicated that the customer had an obligation to pay for them, which he did not fully fulfill.

A unilateral act of delivery or acceptance of the result of work may be recognized by the court as invalid only if the reasons for refusing to sign the act are justified. So, the FAS ZSO, in its Resolution No. A46-13537 / 2009 of 23.11.2010, recognized the defendant's (customer's) refusal to sign acts in the form No. KS-2 as justified due to the lack of information about what works and in what volume were presented for acceptance. ... The court indicated that they could not serve as a basis for filing claims for payment for work.

The customer has the right to refuse to accept the result of work in the event of deficiencies that exclude the possibility of using it for the purpose specified in the construction contract and cannot be eliminated by the contractor or customer.

Example 5.

In the contract, the acceptance procedure can be defined as follows:

The contractor submits to the Customer an act of work performed, drawn up in the form No. KS-2, approved by the Resolution of the State Statistics Committee of Russia dated 11.11.1999 No. 100, and a certificate of the cost of work performed and costs drawn up in the form No. KS-3, approved by the above Resolution, indicating scope of work, as well as executive documentation on the scope of work performed no later than the moment the completed work is presented for delivery.

The Customer, who has received a message from the Contractor about the readiness to hand over the result of the work performed under this Agreement, is obliged to proceed with its acceptance within two working days.

Acceptance of completed construction works must be carried out by a commission consisting of representatives of the Customer and the Contractor.

The delivery of the result of the work by the Contractor and its acceptance by the Customer shall be formalized by an act signed by the authorized representatives of the Parties. If one of the Parties refuses to sign the act, a note is made in it and the act is signed only by the other party.

If, during the acceptance of work, defects in materials, equipment, parts and assemblies are found, or the work performed at the Object does not meet the requirements of the Agreement, SNiPs, TU and design and estimate documentation, the Contractor eliminates such defects or makes an appropriate replacement at his own expense within the time specified by the Customer. If the defect cannot be corrected, it must be compensated in 100% (one hundred percent) amount.

Two days before the start of acceptance, the Contractor notifies the Customer in writing about the readiness of individual critical structures and hidden works.

Their readiness is confirmed by bilateral acts of intermediate acceptance of critical structures and hidden works.

The Contractor starts to perform subsequent works only after the written permission of the Customer.

If the closure of the works is carried out without the confirmation of the Customer, the Contractor is obliged at his own expense to open any part of the hidden works according to the instructions of the Customer, and then restore it.

Works under this Agreement are considered completed only after the Contractor has transferred to the Customer all the necessary executive documentation for the work performed, documents confirming the quality of the materials used (if they were provided by the Contractor), in full according to the acceptance certificate signed by the Parties.

The Customer appoints his representative at the construction site, who, on his behalf, together with the Contractor, carries out acceptance according to the act of work performed, technical supervision and control over their implementation and quality, and also checks the compliance of the materials and equipment used by the Contractor with the terms of the Agreement and the approved project documentation of the Facility.

The Customer's representative has the right to unimpeded access to all types of work at any time during the entire period of work under the Agreement.

The final acceptance of works under the Agreement is carried out in accordance with the established procedure by the acceptance committee with the participation of authorized representatives of the Contractor and the Customer.

The expiration of the terms of the Agreement does not release the Contractor from liability for violation of its terms.

The warranty period for the work performed.

Another important condition a construction contract is a warranty period for the work performed by the contractor. According to paragraph 2 of Art. 755 of the Civil Code of the Russian Federation, the contractor is not responsible for defects (defects) discovered within the warranty period if he proves that they arose as a result of normal wear and tear of the object or its parts, improper operation of the object or incorrect instructions for its operation, developed by the customer himself or by third parties involved by him , improper repair of the object made by the customer himself or by third parties. By virtue of paragraph 4 of Art. 755 of the Civil Code of the Russian Federation, if deficiencies are discovered during the warranty period, the customer must, within a reasonable time, declare them to the contractor. If there is a dispute between the parties regarding deficiencies in work, the court, as a rule, appoints an expert examination. So, in the Decree of the FAS VVO dated 06/08/2011 No. A11-14133 / 2009, it is indicated that, at the request of the plaintiff (customer), the court appointed a construction and technical examination to determine the quality of the work performed, the reasons for the roof leakage, the list and cost of work to eliminate deficiencies roof repair works, the reasons for the destruction of the drainpipe. The examination showed that one of the reasons for the formation of defects in the roof of the residential building in question is the poor-quality performance of work under the work contract dated 05.22.2007, associated with violation of the requirements of SNiP II-26-76 “Roofs. Design standards ”, SNiP II-25-80“ Wooden structures ”, MDS 12-33.2007“ Roofing works ”. Taking into account the assessment, the court concluded that the objections of the defendant (contractor) were not proven and satisfied the customer's claim for the recovery of 130,130 rubles. losses.

Example 6.

In the contract, the condition of the warranty period can be provided as follows:

The contractor guarantees the compliance of the quality of all work with the Contract, project documentation, specifications, applicable standards and technical conditions.

The warranty period for work performed under this Agreement is 5 (five) years from the date of putting the Facility into operation.

The warranty period for the materials and equipment used is determined in accordance with the period established by the manufacturer, but cannot be less than 5 (five) years.

If, during the warranty period of the Object operation, defects are discovered that prevent its normal operation (mediated by defects in work), the Contractor is obliged to eliminate them at his own expense and within the agreed time frame.

To participate in drawing up an act fixing defects, agreeing on the procedure and terms for their elimination, the Contractor is obliged to send his representative no later than two days from the date of receipt of a written notice from the Customer. If the Contractor refuses to draw up or sign an act of detected defects and deficiencies for their confirmation, the Customer has the right to appoint a qualified expert examination, as a result of which corresponding act on fixing defects and deficiencies and their nature, which does not exclude the right of the Parties to apply on this issue to arbitration court... Payment for the services of an expert organization is made at the expense of the Contractor.

Conclusion.

Of course, there are many other features of a construction contract. Moreover, arbitrage practice forms a new interpretation of the norms of law - let us give as an example the aforementioned Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 1404/10. It follows from this that the legal service of a construction organization needs to closely monitor the current legislation and the practice of its application.

The degree of legal protection of its participants depends on how legally competent the terms of the construction contract will be determined.

The concept of a construction contract is disclosed by the legislator in Art. 740 of the Civil Code of the Russian Federation, according to which "under a construction contract, the contractor undertakes to build a certain object or perform other construction work on the instructions of the customer within the time period specified in the contract, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept the result and pay the agreed price."

A construction contract is concluded for the construction or reconstruction of an enterprise, a building (including a residential building), a structure or other facility, as well as for the performance of installation, commissioning and other works inextricably linked with the facility under construction.

According to civil law, the rules on a building contract also apply to capital repairs of buildings and structures, unless otherwise provided by the contract. In the cases stipulated by the contract, the contractor assumes the obligation to ensure the operation of the facility after its acceptance by the customer within the period specified in the contract.

It should be noted that when, under a construction contract, work is performed to satisfy the household or other personal needs of a citizen-customer, then the rules of paragraph 2 of Chapter 37 of the Civil Code of the Russian Federation on the rights of a customer under a household contract apply to such an agreement.

Sources of legal regulation

Legal relations in the field construction activities are mainly governed by the general rules on construction contracts and the norms of paragraph 3 of Chapter 37 of the Civil Code of the Russian Federation on construction contracts. Therefore, in order to have a more complete understanding of legal regulation in the field of capital construction, it is necessary to simultaneously take into account both special rules on construction contracts and general provisions on construction contracts.

In addition to the Civil Code of the Russian Federation, to the sources legal regulation relations in the field of capital construction include other legislative acts RF. The most important place among them is occupied by federal laws about investment activities v Russian Federation carried out in the form capital investments, on architectural activity in the Russian Federation, Urban Planning and Land Codes of the Russian Federation, etc. The Law "On Protection of Consumer Rights" is applied to consumer contracts. Legal notices laws are developed in bylaws approved by presidential decrees, government decrees, ministries and other federal executive bodies.

Along with the laws and by-laws approved at the federal level, there are many acts adopted by the constituent entities of the Russian Federation in the field of organizing construction work. So, for example, St. Petersburg has the right to adopt its own normative legal acts (laws, orders of the governor, regulations, regulations, orders) on issues related to the jurisdiction of St. Petersburg and the joint jurisdiction of the Russian Federation and St. Petersburg. The city has also adopted and operates territorial construction, sanitary and other norms.

A feature of construction activities is that in the legal regulation of a construction contract, a a large number of building codes and regulations (SNiPs), standards and technical conditions, various instructions and regulations adopted by authorized government bodies... Many of the current norms and rules of this category were approved by the federal departments. Currently, there is a gradual process of their renewal, due to both scientific and technological progress and the increased requirements for the quality and safety of construction facilities.

Elements of a contract

The elements of a building contract include: parties, subject, object, form, price, term.

Parties. The parties to the construction contract are the customer and the contractor. Any individuals and legal entities with certain financial resources can act as a customer. A general contractor or a specialized company can act as a contractor: various construction, construction and installation and design and construction organizations, regardless of the form of ownership, as well as individual entrepreneurs.

The customer concludes, within the limits of the rights granted to him, a work contract for the construction or reconstruction of facilities with a general contractor or a direct contract with a specialized company.

If it does not follow from the law or the work contract that the contractor is obliged to perform the work provided for in the contract personally, the contractor has the right to involve other persons - subcontractors in the performance of his obligations. In this case, the contractor acts as a general contractor (clause 1 of article 706 of the Civil Code of the Russian Federation). As a rule, subcontractors carry out complexes of special construction and installation works.

It is necessary to pay attention to the legal norm of Article 750 of the Civil Code of the Russian Federation, which provides for the obligation of cooperation between the parties in the construction contract. According to clause 1 of Article 750 of the Civil Code of the Russian Federation, “if during the execution of construction and related work there are obstacles to the proper execution of the construction contract, each of the parties is obliged to take all reasonable measures depending on it to eliminate such obstacles. The party that has not fulfilled this obligation loses the right to compensation for losses caused by the fact that the relevant obstacles have not been eliminated "

Other subjects. In addition to the parties, other subjects also participate in the legal relationship of the construction contract. These include, first of all, investors. Investors can act as customers themselves, if they have the necessary capabilities, or they can delegate these functions to others. In this case, a special investment agreement is concluded between the investor and the customer, which, by its legal nature, is most often either a commission agreement or a commission agreement. Based on this agreement, a person acting on behalf of the investor enters into a construction contract with the contractor, acting in it as a customer. The investor can be the state (federal and city budgets), credit institutions (banks, financial and investment companies), construction companies(which become investment companies), occasionally - Insurance companies, as well as organizations (including non-profit and public) and other entities.
Particularly noteworthy are equity investors - legal and (or) individuals acting as co-investors in the order of equity participation in the construction of residential buildings on the basis of separate development contracts.

By agreement of the parties, a construction contract can be certified by a notary by making a certification inscription by a notary or other official who have the right to perform such a notarial act (Article 163 of the Civil Code of the Russian Federation). Failure to comply with the notarial form in cases where this is provided by agreement of the parties,

entails the invalidity of the construction contract. Such an agreement is considered null and void (Article 165 of the Civil Code of the Russian Federation).

In the context of normal business turnover, a construction contract is concluded by the parties in a simple written form and is drawn up, as a rule, in the form a single document signed by the parties. It is advisable to draw up an agreement with the inclusion of a detailed list of the rights and obligations of the parties.

In conditions planned economy extremely short contracts were widespread, to which, however, special conditions were attached with a lengthy description of the mutual rights and obligations of the parties. Now, more and more often, the parties are forced to conclude more solid, multi-page contracts that regulate in detail the relationship between the customer and the contractor.

There is no standard or exemplary construction contract (subcontract) binding on the parties. In some cases, when compiling it, approximate forms building contracts recommended for certain types construction work. For example, when concluding a contract, the parties can use the form (sample) of the contract, given as an appendix to the Guidelines for drafting construction contracts for construction in the Russian Federation. For relations with the participation of foreign firms, the role of exemplary conditions can also be played by the International Terms of Construction Contracts developed by the International Federation of Consulting Engineers.

It should be noted that when agreeing on the terms and execution of a construction contract, the parties must be guided by the legislation in force at the time of the conclusion of the contract and take into account their interests as much as possible. This will allow us to say that a specific agreement is concluded on mutually beneficial terms for the parties and meets the basic principles of civil relations.

Price. The price in the building contract has the meaning of the essential condition, which must be agreed upon. According to Art. 746 of the Civil Code of the Russian Federation, settlements between the customer and the contractor are made in accordance with the procedure established by law or a concluded construction contract. Due to the large volume of construction work, the price of the contract is usually determined by drawing up an estimate, which is an item-by-item list of costs for performing work, purchasing equipment, purchasing building materials and structures, etc. Together with the technical documentation that determines the scope, content of work and other requirements for them, the estimate forms the design and estimate documentation, which is an integral element of the construction contract. Usually, design and estimate documentation cannot be revised during construction, except for the cases specified in Art. 743 - 744 of the Civil Code of the Russian Federation.

The lack of an estimate may entail the recognition of the construction contract as not concluded. This conclusion follows from the analysis of paragraph 1 of Art. 743 and clause 1 of Art. 746 of the Civil Code of the Russian Federation, according to which the contractor is obliged to carry out construction and related work in accordance with the estimate, which determines the price of the work, and the customer pays for the work performed by the contractor in the amount stipulated by the estimate.

The basis and procedure for making changes to the technical documentation is governed by the legal norms of Art. 744 of the Civil Code of the Russian Federation. Changes to the technical documentation can be carried out on the basis of an additional estimate agreed by the parties.

The price quoted in the building contract may be firm or approximate. The fixed price cannot be changed unless it changes essential conditions the contract itself. The approximate price of the contract is set when there are assumptions that the construction may incur costs that were not included in the originally agreed estimate. In this case, all subsequent changes in the cost of costs in relation to the originally agreed price must be documented by the contractor and agreed by the parties.

The content of the construction contract is the rights and obligations of the parties. Knowledge of the legislation on the rights and obligations of the parties to a construction contract will help the participants in legal relations to protect their interests even at the stage of pre-contractual negotiations to agree on the terms of a future contract. An analysis of the current legislation allows us to conclude that the scope of the rights and obligations assigned to the contractor is wider - this is due to the specifics of the work performed.

In civil circulation based on market relations, the building contract occupies a special place. And first of all, this is due to the fact that in the construction sector there has been a sharp change in the sources of investment - from budget financing to the predominance of off-budget (private) sources. Changes in funding sources inevitably entail increased property liability of participants in legal relations, including for possible risks.

An increase in property liability and the level of risks leads to the fact that the contract becomes the main one legal document regulating the rights and obligations of counterparties in all areas of investment and construction legal relations. And the stability of this market segment and the degree of legal protection of its participants depend on how legally competently the terms of the agreement are determined.

Valentina Sidorova, Executive Director NP Legal Bureau FELIX, Ph.D. Sci., Associate Professor of the Department of Civil and Labor Law, St.

Construction contract.

Under this contract, the contractor undertakes to build a certain object on the instructions of the customer or perform other construction work within the specified time period, and the customer undertakes to create the necessary conditions for the contractor to complete the work, accept the result and pay for it.

Peculiarities.

1. This is a consensual, onerous, mutual agreement.

2. Its essential conditions are subject, price, start and end of work; without these conditions, the contract is considered not concluded (here the claim for illegal enrichment applies).

3. The customer under a construction contract is individuals or legal entities who have financial resources, that is, investors, however, given that to control the activities of the contractor, special skills and knowledge of the customer's functions are often transferred to a specialized organization (engineer), which is the customer's representative. Thus, often in a construction contract, the customer and the investor do not coincide; In this case, an investment agreement is concluded between the engineer and the customer, which by its nature is usually either a commission agreement or a commission agreement. The contractors are various construction, construction and installation, design and construction and other organizations, or individual entrepreneurs with a license.

4. The subject of chipboard is the result of the contractor's activities in the form of a newly built or reconstructed real estate object

5. The price is set freely, but usually an estimate is drawn up, which determines the itemized list of costs for the performance of work, the cost of materials, equipment. According to DS.P. the contractor has the right to demand a revision of the estimate and an increase in price when it is necessary to carry out additional work. Payment is made on a contractual basis.

6. The relationship of the parties is of a continuing nature; therefore, the parties can provide for the completion of individual stages.

7. Form Written, in the form of a single document, exemplary forms are often used.

8. There are two cases of risk according to D.S.P. - The risk of loss or damage to the construction site and materials used in the construction, in addition, the contractor's risk also includes the consequences of the actions of subcontractors.

A) The law imperatively indicates that in case of accidental death, damage to the construction object before its acceptance, the risk lies with the contractor, if the customer took a separate stage before the acceptance of the work as a whole, the risk of accidental death, damage lies with him of this result. If the construction object before acceptance was lost or damaged due to low-quality materials of the customer, his equipment, because of his erroneous instructions, the Contractor has the right to demand payment for all work according to the estimate, provided that he warned the customer about this.

B) The risk of accidental loss of damage to materials, equipment lies with the party that provided them. In addition, the contract may provide for the obligation of the party who is responsible for the risk of insuring objects against accidental loss, damage, or material or equipment, liability for causing harm to third parties during construction. The conditions of such insurance, information about the insurer, the amount of the insured amount, what risk is insured, is reported to the counter agent.

9.D.S.P. can be concluded in the usual way (Offer-Acceptance) And by bidding. Bargaining is the choice of a contractor for the performance of work, on the basis of a competition which is in the form of a tender i.e. determined by submitting offers.

Contractor's rights and obligations.

1) He is obliged to carry out construction on time. The work must be carried out in accordance with those. Quality documentation and cost estimates. Those documentation and estimates are drawn up in accordance with the requirements of regulatory documents which include (Gost and other legal standards). The parties are obliged to agree on the estimate and those. Documentation. Estimate and technical documentation yavl. Part of the contract. They are attached to its text as an annex; their presence is stipulated in the main text of the treaty. There are cases when additional work is required during construction, which increases the cost of the estimate. In this case, the contractor is obliged to inform the customer about this in writing and wait for his instructions. If no response is received within ten days, unless another period is provided for in the contract, the contractor is obliged to suspend the work, while the customer bears the losses for downtime. If the contractor fails to fulfill this obligation, he is deprived of the right to demand payment for these works.

If necessary, the customer can also make changes to those documentation if additional work does not exceed 10% of the total estimated cost of construction, while the contractor does not have the right to refuse them for additional payment. If additional work exceeds 10% of the cost, this issue is subject to agreement

2) The contractor is obliged to provide the construction with his own materials and equipment, unless otherwise provided by the building contract. If such security lies with the customer, the contractor has the right not to interfere with work if materials, equipment, and those are not provided. Documentation.

3) The contractor is obliged to follow all the instructions of the customer if they do not contradict the contract and are not obvious. intervention in his household. Activity

4) The contractor is obliged to: perform work in compliance with security requirements environment, construction safety, etc.

5) The contractor is obliged to promptly eliminate the deficiencies identified during the acceptance of the work.

The rights and obligations of the customer.

1. He is obliged to grant the contractor permission to land plot for construction, its area and condition must comply with the contract.

2. The customer is obliged to transfer the project documentation to the contractor, to ensure the timely start of work, by providing materials, equipment, to provide assistance in construction, for example, on a temporary connection of power supply.

3. The right to monitor the progress of work, the quality of materials; however, he does not have the right to interfere with the business of the contractor. If the customer does not have special skills in construction control, he has the right: to conclude an agreement on the provision of this service without the agreement of the contractor with the engineer.

4. If in the course of construction obstacles to the proper execution of the contract are discovered, each of the parties is obliged: to take reasonable measures to eliminate them; otherwise, the obligated party shall compensate for the losses.

5. If, for reasons beyond the control of the parties, the work is suspended, and the construction object is mothballed, the customer pays for the work in the amount that was completed before the mothballing.

6. The customer is obliged to: organize and carry out the acceptance of the result of the work at his own expense. In cases according to the law, representatives of the state must participate in the acceptance. Bodies, local government: if the customer is state Either municipal organizations or construction was carried out at the expense of money from the budget. Acceptance is carried out as soon as possible after notification of this.

The task of acceptance is formalized by a special act signed by the parties. Refusal to sign the act does not exclude the delivery of the object. In this case, the act is signed by only one party, and a note is made about the refusal by the other in the act, such an act has legal force until it is recognized in court at the claim of the other party as invalid. In this case, the court establishes the validity of the reasons for the refusal. The identified deficiencies are recorded in the act and the contractor must eliminate them within a reasonable time.

Responsibility for D.S.P.

Responsibility is established in the manner and on the grounds established by the contract or law. Liability is based on general rules on liability, and in cases of law, special rules are provided. If the party to the contract is business entities, their responsibility occurs regardless of fault. In cases under the law, administrative liability is provided for a violation in the field of construction. This is construction without obtaining the permits required by law, for violation of regulatory requirements that reduce the strength, reliability, and facility.

Article 754 G.K. highlights that when the contractor deviates from the requirements provided for in those. Documentation from the mandatory standards provided for building codes and the rules, he can also be brought to civil liability. In this case, the reserve has the right to demand:

Within a reasonable period of time, the elimination of these deviations

Commensurate reduction of the price for work

If it is provided by the contract, reimbursement of their expenses for elimination.

The agreement may provide for other consequences.

An exception: the contractor is not responsible for minor deviations if he proves that they did not affect the quality of the work of the contractor

However, these consequences are also possible with erroneous data contained in those documentation. The party responsible for the preparation of those is responsible here. Documentation.

The contractor is also responsible for reducing the strength, stability, reliability of buildings, structures during their reconstruction, etc. Here comes the responsibility for the inadequate quality of work.

The contractor is responsible for the defects of the object discovered within the warranty limits. The customer is obliged to declare them within a reasonable time after their discovery, if the warranty period is not established for the result of the work, the requirements for defects can be presented within a reasonable time but within 5 years from the date of acceptance of the object.

The contractor is released from liability if he proves that the defects arose as a result of improper operation, improper repairs as a result of normal wear and tear.

The rules on the responsibility of the contractor for the quality of work in a construction contract are provided for in Art. 754 of the Civil Code of the Russian Federation. Violations causing the contractor's liability include deviations from the requirements provided for in the technical documentation and in the building codes and regulations binding on the parties, as well as failure to achieve certain indicators of the construction object specified in the technical documentation, and above all such as productive capacity enterprises. If we are talking about the reconstruction of a building or structure, the contractor is responsible for the reduction or simply loss of strength, stability, reliability of the building or structure or part of it. In the same Art. 754 of the Civil Code of the Russian Federation provides for the limits of derogations from the contract, in which the specified liability does not occur. This refers to the release of the contractor from liability in cases where he made minor deviations from the technical documentation, with the indispensable condition that for this he needs to prove that such deviations do not affect the quality of the construction object.

The relations between the parties to a construction contract are subject to general contract rules regarding the possibility of filing a claim for inadequate quality within a special period established for deficiencies that arose before the transfer of the work result to the customer or for reasons that occurred before the specified moment. Due to the complexity of the construction contract, this period is not two years, as indicated for the rest of the contract in Art. 724 of the Civil Code of the Russian Federation, and five years. Calculated from the moment when the result of the work performed was accepted or should have been accepted by the customer, it is valid if the warranty period was not established by the contract or turned out to be less than five years.

In the Civil Code of the Russian Federation (Art. 755), issues related to quality assurance in a construction contract are specially highlighted. It means that the contractor is obliged to guarantee that the construction object will achieve the indicators specified in the technical documentation and the ability to operate the facilities in accordance with the contract during the warranty period. The warranty period can be established by law, and then the parties have the right only to increase it (clause 1 of article 755 of the Civil Code of the Russian Federation). The meaning of the warranty period is the contractor's liability for defects (defects) that were discovered during the specified period. An exhaustive range of grounds for exempting the contractor from such liability is provided for in Art. 755 of the Civil Code of the Russian Federation. This refers to cases when the contractor was able to prove that the defects occurred due to normal wear and tear of the object or its parts, improper operation or incorrect operation instructions that were developed by the customer himself or those whom he engaged for this purpose, or improper repair of the object, which made by the customer himself or persons involved by him. If the customer finds defects during the warranty period, he is obliged to notify the contractor within a reasonable time. For the entire time within which the object could not be operated, and until the identified deficiencies were eliminated. For such deficiencies, claims must be made within a reasonable time frame. The consequences of his omission have not been established. In any case, the possibility of refusal by the court for this reason in satisfying the customer's demand is not excluded. There is no doubt, however, that when assessing the admitted omission of the deadline, possible consequences dismissal of the claim for this reason.

The Civil Code of the Russian Federation grants the customer in a construction contract the right to demand from the contractor the elimination of deficiencies for which he is not responsible. This means that the work necessary for this is carried out at the expense of the customer. However, this right arises only if it is provided for in the contract. At the same time, the Code frees the contractor from the need to eliminate deficiencies in the situation under consideration, if this is not directly related to the subject of the contract or cannot be carried out by the contractor for reasons beyond his control.

Along with civil liability, in some cases, the inadequate quality of construction may entail administrative liability. Its various grounds are provided for, for example, in paragraph 2 of Art. 66 Urban Development Code... At the same time, in general terms, such responsibility is established in the Administrative Code. This refers to the construction of individual objects without the consent of specially authorized state bodies, the commissioning of enterprises without complying with the requirements for the protection of atmospheric air, violation or non-compliance with the rules fire safety, fire safety requirements that are provided for by building codes and regulations when designing the construction of buildings and structures.

With regard to the construction contract, special rules have been allocated on the cooperation of counterparties (Article 750 of the Civil Code of the Russian Federation). This refers to the imposition on both parties of a kind of general obligation: to take all reasonable measures depending on them to remove obstacles to the proper execution of the contract. Obviously, this article is based on the imperatives common to all participants: to act reasonably, in good faith and fair.

The party that has not fulfilled its obligation loses the right to compensation for the losses incurred. The corresponding rule is designed for a situation in which a party incurred losses due to obstacles that the counterparty could and should have prevented. So, for example, in the case where the contractor did not complete the work on time, citing the fact that the customer did not provide the equipment on time, the latter may challenge this objection, citing the fact that the contractor could have purchased the equipment from a third party. In such a dispute, the subject of proof will be the “possibility” of taking appropriate measures and their “reasonableness”. In this case, there is no basis for the application of the established Art. 10 of the Civil Code of the Russian Federation of the presumption of "reasonableness". Therefore, both the “possibility” and “reasonableness” of the persons who should have been undertaken by the counterparty (in this case, the contractor) must be proved by the party that applied to the court (in this case, the customer). Article 750 of the Civil Code of the Russian Federation provides the party that incurred expenses in connection with the fulfillment of the obligation to take measures aimed at preventing obstacles, the right to demand reimbursement of expenses when it is provided for by the contract. The above decision does not exclude a situation in which the injured party may, in the presence of those provided for in Art. 980 of the Civil Code of the Russian Federation of the grounds to declare a claim for compensation for losses as a person who acted without an instruction in someone else's interest (Article 984 of the Civil Code of the Russian Federation).

Along with the recovery of losses, liability for violation of the terms of the construction contract may be expressed in the payment of a penalty. The payment of a penalty may be stipulated in the contract. Typically, the forfeit is a percentage of the total construction cost. Moreover, the percentage may vary depending on the duration of the delay in fulfilling the obligation. So, for example, the customer can be obliged to pay a forfeit:

for the delay in the transfer to the contractor of the construction site, technical documentation, equipment and materials;

for the transfer of incomplete equipment for installation;

The contractor may be obliged to pay a forfeit:

for the completion of the construction of the facility after the due date;

for untimely release of the construction site from the property belonging to him;

for violation of the terms of performance of certain types of work, etc.

At the same time, the parties should keep in mind that, in addition to sanctions for non-fulfillment of obligations under the contract, the guilty party shall reimburse all losses not covered by forfeits. The payment of penalties, as well as compensation for losses, does not relieve the parties from fulfilling their obligations.

More fully than was previously done in the general provisions on the contract, the issue of liability for the inadequate quality of materials and equipment intended for construction has been settled. Such responsibility rests with the party that provided them. This responsibility can arise if it is found that it is possible to use the materials and equipment provided by the party without impairing the quality of the work performed. It is objective, since it does not depend on the fault of the party that provided the materials and equipment. This last party can be released from liability only if it proves that there was an impossibility of performance arising from the circumstances for which the counterparty is responsible.

Art. 704 of the Civil Code of the Russian Federation in that part of it, in which the party that provided equipment and materials is responsible not only for their inadequate quality, but also for encumbrances with the rights of third parties.

The customer, who provided materials and equipment of inadequate quality and thus made it impossible to use them without deteriorating the quality of the work performed, must replace them at the request of the contractor. If the customer refuses to fulfill the relevant requirement, the contractor has the right, having canceled the contract, to demand that the customer pay the price of the contract in proportion to the part of the work performed (clause 3 of article 745 of the Civil Code of the Russian Federation). This right becomes the responsibility of the contractor, since in the event of an inadequate quality of the work result, he can refer to the defects in materials and equipment provided by the customer, only if these defects could not be discovered by him with proper acceptance of the materials (clause 3 of Art. 714 of the Civil Code of the Russian Federation).

In case of violation of obligations under a construction contract, other sanctions or methods of protection are applied that are not related to civil liability (Article 12 of the Civil Code of the Russian Federation). Some of them are carried out by the court, others - by the entitled entity.

Such measures can be applied along with and simultaneously with measures of civil liability.

Protection methods include:

refusal of the customer or the contractor in whole or in part from the performance of the contract;

withholding by the contractor of the result of work or equipment or other property of the customer that turned out to be in his possession in the event of failure by the customer to fulfill the obligation to pay;

failure to start work or suspension of work;

gratuitous elimination of deficiencies by the contractor or a commensurate reduction of the price set for the work with inadequate quality of work.

In practice, such a typical construction contract method of ensuring the proper fulfillment of an obligation is widely used, as the customer retaining a part of the amount intended for a full calculation (for example, 10-15% of the cost of work) until the expiration of the warranty period.

The contractor is obliged to comply with the requirements of the law and other legal acts on environmental protection and on the safety of construction work during construction, insofar as he is liable for violation of this obligation.

Responsibility for violation of environmental protection requirements in relation to the area civil law can take for the contractor mainly the form of an obligation to compensate non-contractual damage directly to the victim. As a general rule, the customer's liability to the contractor arising from the violation of these requirements is regressive, that is, it occurs after the customer has made the corresponding payments to the state or directly to the victim. This responsibility with regard to the safety of construction works is linked, in particular, to Art. 1095 of the Civil Code, which relates to the area of ​​tort obligations. The aforementioned article establishes that the person who performed the work (the contractor), and not the one in whose interests he acted (the customer), is liable to the victim for harm caused to the life, health or property of a citizen or to the property of a legal entity. In addition, it is important to emphasize that the responsibility in question is of a heightened nature: it occurs regardless of the fault of the contractor.

So, civil liability for non-performance or improper performance the construction contract is complete and is built on the basis of general provisions about liability under the contract. Ch. 25 of the Civil Code of the Russian Federation and § 3. Ch. 37 of the Civil Code of the Russian Federation.

INTRODUCTION

The relevance of the topic chosen by me for writing this work is the study of the construction contract, since in the conditions modern development market relations are of great importance business transactions between enterprises, institutions, organizations of different forms of ownership.

A large and varied number of contracts concluded between legal entities, are a means of regulating commodity-money relations between economic entities that determine their rights and obligations.

The building contract has different kinds, namely: directly the contract itself on the construction of the facility, capital and maintenance buildings and premises, installation work and many others.

Currently, a large number of all kinds of inspections by law enforcement and regulatory authorities are being carried out. In the process of carrying out such inspections, first of all, they control various types of contracts concluded by the organization.

Tax and accounting records depend on the correct text of any agreement.

PROCEDURE FOR SIGNING THE CONTRACT OF THE CONSTRUCTION CONTRACT

The concept and meaning of a building contract

construction contract contract

Construction is one of the main branches of production. Construction is mainly distinguished by the fact that the final product is real estate: objects created and prepared for commissioning, which, using the terminology of Art. 130 of the Civil Code of the Russian Federation, Civil Code Of the Russian Federation (part one) from 30.11.1994 No. 51-FZ (revised from 01.09.2013) are firmly connected with the land, and for this reason "movement ... is impossible without disproportionate damage to their purpose." These objects are individual and are designed according to the general rule for many years of operation. Also, construction is carried out in the open air, continues for a long time, has an increased danger to others, often at operating enterprises, as a result of which it is carried out on the basis of projects agreed with the competent authorities, involves the active participation of the customer (his representatives) in the course of work.

By virtue of Art. 740 (clause 1) of the Civil Code of the Russian Federation Civil Code of the Russian Federation (part two) dated January 26, 1996 No. 14-FZ (as amended on July 23, 2013). under a construction contract, the contractor undertakes to build a certain object on the instructions of the customer or perform other construction work within the time 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 agreed price.

A construction contract may include the construction or reconstruction of an enterprise, structure or other object, a residential building or other building, as well as work inextricably linked with the object under construction: commissioning, installation, etc. (see clause 2 of article 740 of the Civil Code of the Russian Federation).

For a work contract for capital construction with its inherent complexity of the relationship it encompasses, more than any other contracting agreement, it is characterized by a mixture of elements from different contracts.

The main difference between a construction contract is most fully expressed in a specific form - "turnkey" construction. It is on cases when the contract concluded between the customer and the contractor provides for the latter to carry out the cycle "design - construction, installation and special construction work stipulated by building codes and regulations - commissioning of the facility." By agreement between the parties, the customer can assume part of the obligations related to the construction (for example, to provide material resources). However, even at the same time, the contractor continues to be responsible for the transfer of the created facility to the customer on a turnkey basis, since he is obliged to hand over the facility ready for operation in accordance with the terms of the contract. During construction industrial facilities the contractor is usually obliged to transfer at the same time technical documentation, technical design, as well as instructions for operation.

One of the features of the legal regulation of a construction contract is that the relationship of the parties can continue after the delivery of the result of the work. This refers to the assumption by the contractor of the obligation after the completion of construction to provide various types of services related to the operation of the facility, including such as, for example, the preparation of various types of operating instructions, training of the customer's employees. The volume, cost and other characteristics of this kind of services are determined in the building contract itself.

The practice aimed at expanding the traditional scope of the contract, providing for elements of other contracts in it, is now reflected in the Civil Code of the Russian Federation. We are talking about the inclusion in paragraph 2 of Art. 740 of the Civil Code of the Russian Federation, dedicated to clarifying the essence of the construction contract, indicating that the contractor may assume the obligation to ensure the operation of the facility after its acceptance by the customer within the period specified in the contract.

It is permissible to include in the contract and conditions, which prohibit the obligation of the contractor to eliminate, at the request of the customer and at his expense, deficiencies for which the contractor should not be held liable. If such a condition is contained in the contract, the contractor will be able to release himself from the corresponding obligation and responsibility for its violation only if he can prove that the defects discovered are not directly related to the subject of the contract or the contractor is not able to eliminate them for reasons beyond his control. ...

The most important distinguishing feature, which was guided by the legislator when allocating a construction contract as part of the chapter "Contract", is the nature of the work and the special area in which they are carried out. Thus, a construction contract is a contract that has the general features of a contract, which is used in the relevant field, taking into account its inherent specifics.

The Civil Code of the Russian Federation took into account that the specifics of the contract and its connection with the construction contract can be assessed in different ways by the counterparties. Therefore, a middle path was chosen: the parties were given the opportunity, taking into account the peculiarities of the emerging relations, to admit, by agreement between themselves, that the legal regime established for the construction contract will apply to the contract concluded by them. Accordingly, paragraph 2 of Art. 740 of the Civil Code of the Russian Federation introduced a dispositive norm in this regard, which only summarizes the extension of one type of performance to an agreement renovation works- overhaul works - rules on building contracts.

Consequently, if the contract for the performance of capital repairs stipulates that the norms of the construction contract do not apply to it, thereby the effect of general contract provisions in relation to this contract is predetermined, i.e. Articles § 1 Ch. 37 of the Civil Code of the Russian Federation.

Articles § 3 "Construction contract" Ch. 37 of the Civil Code of the Russian Federation also apply to work to meet the domestic or other personal needs of a citizen acting as a customer (for example, work on the construction of a residential building, garage or summer cottage). However, in appropriate cases, the articles of this paragraph, as already noted in the previous chapter, operate together with the rules on the domestic contract. When determining the sources of legal regulation of a construction contract in the cases under consideration, one should bear in mind the above-mentioned purpose of the special regime for consumer contracts: the fact that it is established specifically to protect the rights of consumers. For this reason, the rules on consumer protection, contained not only in laws on consumer protection and other legal acts adopted in accordance with them, but also in the articles of the above-mentioned § 3.