The issue of defects in work is a very common source of disputes. A proper understanding of what constitutes a defect in work and how to proceed when asserting the rights arising from the existence of a defect is essential for the successful enforcement of these rights.
According to the legal provisions set forth in the Civil Code, a work is defective if it does not conform to the contract. Therefore, the decisive factor is not a general notion of what the work should look like or what it should accomplish. What is decisive, above all, is how the subject matter of the work and its characteristics were defined in the contract concluded between the client and the contractor (whether in writing or, where applicable, orally). If the contract does not specify particular characteristics, the assessment is based on the usual characteristics and the purpose for which the work is intended.
This is precisely why a precise specification of the work in the contract is essential for assessing any defects. In contracts for work, it is advisable to avoid vague or ambiguous terms; conversely, it is always advisable to specify the purpose of the work—that is, the specific function the subject matter of the work is intended to serve—since every work is created for a specific purpose. This applies particularly to the execution of work involving construction or software.
In order to effectively assert rights arising from defects in the work, the client must fulfill several basic obligations:
- identify the defect in a timely manner,
- report the defect properly and in a timely manner (file a claim),
- assert a specific claim arising from defective performance.
The filing of a claim is a unilateral legal act by which the client points out a specific defect. The defect must be sufficiently specified—either directly identified or at least described by its manifestation. If the work has multiple unrelated defects, each must be reported separately.
Compliance with the deadlines for filing claims is of fundamental importance.
Patent defects (visible to the naked eye or detectable through routine inspections upon acceptance) must be reported immediately upon acceptance or as soon as possible thereafter.
Hidden defects (those that become apparent only later) must be reported without undue delay after their discovery, but generally no later than two years after the work handover; for construction projects, the deadline is five years.
In the case of defects covered by a warranty, claims may be filed until the end of the warranty period (in this case, the claim period is the same as the warranty period).
Failure to comply with these deadlines may result in the court denying the claim.
However, simply filing a claim is not sufficient for success. The client must also specify the exact claim being asserted. This depends on whether the defect in question constitutes a material or immaterial breach of contract.
A material breach of contract is one of which the breaching party knew or should have known at the time the contract was concluded that the other party would not have entered into the contract had it foreseen such a breach. In other words, it is a situation where the defect significantly impedes or prevents the fulfillment of the contract’s purpose. Conversely, a immaterial breach of contract does not have such a serious impact. In cases of doubt, the breach is presumed to be immaterial.
In the event of a material breach, the client may choose among the following remedies:
- delivery of a replacement work free of defects (if the subject matter of the work, given its nature, can be returned or handed back to the contractor), delivery of the missing work and rectification of legal defects,
- repair of the work (if the defect is repairable),
- an appropriate discount on the price of the work, or
- withdrawal from the contract (accompanied by a refund of the price paid for the work).
In the event of a immaterial breach, the client may choose among the following remedies:
- delivery of the missing work and rectification of other defects in the work, or
- an appropriate discount on the price of the work.
The choice of remedy must be communicated in a timely manner; otherwise, the client’s rights will be limited to the provisions governing immaterial breaches.
We can therefore conclude that, in order to successfully assert rights arising from defects in a work, it is essential to pay attention to the definition of work in the contract, conduct a thorough inspection upon acceptance, report defects immediately and in sufficient detail, and always specify and notify the specific claim. Following the correct procedure is crucial. Even a valid claim may be unsuccessful if the prescribed procedure is not followed.
If you are unsure of the correct procedure for asserting your rights arising from defects in a work, please contact our law firm. Timely legal assistance can significantly influence the outcome of a dispute.
Bělina & Partners advokátní kancelář s.r.o.
Our services focus, among other things, on contracts for work in the construction and IT industries, as well as in other fields, and on representing clients in disputes that may arise in connection with such contracts.
Bělina & Partners advokátní kancelář s.r.o.
